Spilling Ink

As some readers know, the Supreme Court of Canada (the “SCC”) wrote in 2007:  “Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful to catalogue the various debates.” (Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 SCR 333 at para. 20)

About 5 years later, the Supreme Court found it necessary to spill some more ink on the subject because, in its own words, its discussion in Resurfice of at least one very important aspect of the  subject was “incomplete”: Clements v. Clements, 2012 SCC 32 at para. 34.

I plan to spill some more of the electronic equivalent, pixels, to show why it was and still is both necessary and helpful to catalogue (maybe even refer to) at least some of the various debates, and why it would have been helpful if the Supreme Court had been just a bit less dismissive, and more careful, in both Resurfice and Clements.

Pull up a chair and a glass (or more) of your favourite tipple. As ever, these posts assume that the reader has a basic level of familiarity with the subject matter.

Some might suggest (and have, and will) that a reason the SCC suggested it would not be helpful to catalogue the various judicial debates – meaning, here, at least the existing SCC cases – is that the Resurfice panel realized that at least some of its own decisions would not support the new statements of law.

Some might suggest (actually some have suggested ) that a reason that the SCC said it would not be helpful to catalogue the academic debates is that they point out the Court’s inconsistencies.

Final courts of appeal are like umpires in baseball or cricket (at least before the advent of video review). “It disna’ matter if the ba’ hit yer neb; if the umpire says yer oot yer oot.’ ( Lord Hope of Craighead, “Decision Overruled” – Facing up to Judicial Fallibility” (2003), 14 King’s College Law Journal 121 at 122, quoting a passage in an early 1930s Scottish judgment in which the judge had quoted the response of a wicket-keeper to the batsman’s complaint about the umpire’s ruling.)  They’re infallible because they’re final, not final because they’re infallible. (Brown v Allen (1953), 344 US 443 at 450, Justice Jackson). Still, it won’t come to many as a complete shock that even the highest of appellate judges are fallible. (For a good discussion of this issue,  see, Lord Hope of Craighead, “Decision Overruled” – Facing up to Judicial Fallibility”and McMullin, J.A., “Judicial Fallibility and The Appellate Process”, [1983] Law Lectures for Practitioners, p. xvii.

In “Decision Overruled” Lord Hope quoted from a 1932 Scottish judgment (Assessor v. Collie, 1932 SC 304 at 311-12) which he remarked had “perhaps just a touch of sarcasm”

The House of Lords has a perfect legal mind. Learned Lords may come or go, but the House of Lords never makes a mistake. That the House of Lords should make a mistake is as unthinkable as that Colonel Bogey should be bunkered twice and take 8 to the hole. Occasionally, to some of us two decisions of the House of Lords may seem inconsistent. But that is only a seeming. It is our frail vision that is at fault.

As I’ve written elsewhere, that passage reminds me of a bit from Shakespeare – but then much of well-written English will remind somebody of something from Shakespeare. In this case, it’s Antony’s “The fault, dear Brutus, is not in our stars, / But in ourselves, that we are underlings.” Shakespeare, Julius Caesar, Act I, scene ii, lines 140–142.

On a different issue, but the point is appropriate, the Alberta Court of Appeal wrote in R. v. Kusk, 1999 ABCA 49, [1999] A.J. No. 78 at para. 13 (Alta. C.A.):

To a person untrained in law and evidence, these false trains of reasoning are highly meretricious. Once that poison is injected into his or her brain, there is probably no antidote. They even lure some with training.

The Alberta Court of Appeal was, of course, speaking about counsel.

Since this subject is dry (even for the seemingly obsessed), let’s digress for a moment.  There’s explicit judicial authority that two or more wrongs don’t make a right; even Ontario Court of Appeal authority. There is now good Ontario law that recidivism is irrelevant. (The number of times an error is committed is irrelevant.) In Gu v. Tai Foong International Ltd., [2003] O.J. No. 264 at para. 35 (C.A.), the Court Appeal wrote:

[v]iewed from one perspective, there is an element of “two wrongs do not make a right” in what transpired late in the trial. Arguably, Gu should not have been permitted to testify contrary to his pleadings . . . and the Lam Group should not have been permitted to argue defences it had not pleaded.

A trial judge wrote in R. v. J.R.R., [1996] O.J. No. 3468 at para. 64 (Gen. Div.): “I have decided that the community cannot take another chance with Mr. J.R.R. Six wrongs do not make a right.” A little digging will turn up more usages of the adage by Ontario judges: National Trust Co. v. Furbacher, [1995] O.J. No. 3566 at para. 7 and Lerner J. in Jones, Gable & Co. v. Scott, [1972] O.J. No. 940 at para 10 (H.C.J.). It’s been used by other judges, too.

The  first reported usage I could find in reported Ontario case law was in 1908 by Falconbridge C.J.K.B in Loughead v. Collingwood Shipbuilding Co., [1908] O.J. No. 101, 16 O.L.R. 64 (Div. Ct.):

[i]t would probably be held, in view of cases such as … [that] the fact of such insurance could not be taken into consideration by the jury. But, even if two wrongs could make a right … there would still be a substantial miscarriage of justice on the facts of the case.

Remarkably, that was for the benefit of an insurer.

Some of you will recall this famous passage from a famous book, or at least parts of the passage and the book. I’m going to quote from Through The Looking Glass by Lewis Carroll. The quotation comes from c. VI and begins with Humpty Dumpty speaking to Alice. (Those of you familiar with my writing – my voice – know that I find Lewis Carroll an apt source of relevant commentary.)

‘There’s glory for you!’
‘I don’t know what you mean by “glory,”‘ Alice said.
Humpty Dumpty smiled contemptuously. ‘Of course you don’t – till I tell you. I meant ‘there’s a nice knock-down argument for you!’
‘But “glory” doesn’t mean “a nice knock-down argument,”‘ Alice objected.
‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less.’
‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all.’

I’d go on and make a snarky comment or three, but then I already have.

One of the advantages of having written about this area, before, is that I’ve a library of material I can readily quote from, without having to worry about accusations of plagiarism (so long as I remember to cite myself). What you’re about to read, except for the last line of this piece, are the concluding paragraphs, including footnotes, from an article I wrote with a long title, part of which is   “Defining The Indefinable And Hunting The Causative Snark” [(2005), 30 Adv. Q. at 102-103)]:

In Carroll’s Alice in Wonderland, the Mad Hatter asks Alice: “why is a raven like a writing desk?”[447] None of Alice, the March Hare, the Dormouse and the Mad Hatter answered the riddle. Famous literary figures have offered answers. Aldous Huxley wrote that it is because “there is a b in both and because there is an n in neither”.[448] In the same vein, one member of a group of lawyers, judges, and law professors at some continuing education gathering involved in a discussion of the intricacies of adequately proving legal cause might ask another “Why is proving legal cause like a bestiary?” and receive equally meaningful answers.[449] A cynical lawyer in private practice might answer: “because there is no y in either but there is a y in money.”

The current debate about the meaning of factual cause, both inside and outside of law, shows that trying to pin down the judicial concept of factual cause is akin to capturing Carroll’s Snark.[450] What Canadian jurisprudence now has is words that are very wealthy for reasons described by Carroll in Through The Looking Glass:[451]

“That’s a great deal to make one word mean,” Alice said in a thoughtful tone.

“When I make a word do a lot of work like that,” said Humpty Dumpty, “I always pay it extra.”

The words that make up the current versions of Canadian factual causation jurisprudence are working very hard to hold their meaning(s). The problem is that even they do not know what that meaning is.[452] The result is the current state of the jurisprudence, where clarity, predictability and ease of use are not defining characteristics; the content of the material contribution doctrine has all of the substance of gossamer or the lace tatted by Carroll’s Beaver;[453] and a thimble is all we need to contain it.[454]

“Snark” was written in 2004-05 and published in 2005. The thimble may have gotten bigger since then. Whether there’s anything more of use in the thimble is arguable.

_______________

Footnotes
447. (1865), c. VII, A Mad Tea Party.
448. M. Gardner, More Annotated Alice (New York: Random House, 1990) at p 83.
449. A bestiary is a medieval book that lists both real and imaginary creatures.
450. Carroll wrote in The Hunting of the Snark: “They sought it with thimbles, / they sought it with care; / They pursued it with forks and hope.”
451. Through The Looking-Glass and What Alice Found There, c. 6.
452. On the other hand, it seems that the majority of the current judges of the Supreme Court of Canada believe the law is sufficiently clear that it does not require clarification. What other conclusion should we draw from that court’s refusal to grant leave to appeal, over the last 15 months, in … [case list omitted]
453. “There was also a Beaver, that paced on the deck, / Or would sit making lace in the bow”: Carroll, The Hunting of the Snark, Fit the First; see, also, Fit the Fourth, Fit the Sixth.
454. The thimble may be slightly larger in Alberta, British Columbia, Manitoba, Newfoundland and Ontario.

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