Category: British Columbia law
An appellate court’s duty: correct explanations
Lawyers, and others, who aren’t experts in the subject matter read appellate decisions, too. That’s one of the ways we learn. That’s one of the ways we become better at what we do.
An appellate court fails one of its duties to the profession, and to the public, if the court explains a decision in terminology which incorrect and misleading, even if the decision is valid on the evidence.
Fault and liability are not synonyms. The members of a BCCA panel forgot that in the reasons in Hansen v. Sulyma, 2013 BCCA 349.
It’s not rocket science
Chapman v Chapman, 2013 BCSC 1176
An mva.
P was not represented.
D was not represent.
ICBC was a third party. ICBC was represented.
P lost.
Should P have lost?
British Columbia – Adieu Moore v. Castlegar
As a result of the Supreme Court of Canada decision in Ediger v. Johnston, 2013 SCC 18 (released today), the unique to British Columbia Moore v. Castlegar gloss on Snell v. Farrell is as dead as the parrot in the classic Monty Python sketch.
The BCCA had affirmed that rule in its decision: Ediger v. Johnston, 2011 BCCA 253 at para. 84
[84] This court confirmed in Moore v. Castlegar& District Hospital (1998), 49 B.C.L.R. (3d) 100, [1998 CanLII 4906] (C.A.) that “where both parties have led expert evidence on the issues of causation, it is not open to this court to apply the ‘common sense’ reasoning urged in Snell”(para. 11).
The SCC’s response at para. 36
[36] The Court of Appeal’s reasons also suggest that it understood the trial judge to have improperly relied on Snell v. Farrell, [1990] 2 S.C.R 311, in order to draw an “inference of causation” (paras. 83-85). Snell stands for the proposition that the plaintiff in medical malpractice cases — as in any other case — assumes the burden of proving causation on a balance of the probabilities (ibid., at pp. 329-30). Sopinka J. observed that this standard of proof does not require scientific certainty (ibid., at p. 328); Clements, at para. 9. The trier of fact may, upon weighing the evidence, draw an inference against a defendant who does not introduce sufficient evidence contrary to that which supports the plaintiff’s theory of causation. In determining whether the defendant has introduced sufficient evidence, the trier of fact should take into account the relative position of each party to adduce evidence (Snell, at p. 330).
I wrote about this issue in more detail earlier, here.
For those who want to know what happened in the appeal: the SCC allowed the plaintiff’s appeal, restored the trial judge’s decision that the defendant was liable, and returned the case to the BCCA to deal with the parties’ damages appeals which the BCCA hadn’t considered since it dismissed the action.
On the merits issues, I think the SCC’s decision is the correct. All one needs to do is read the head-note to understand why.
Added on April 6, 2013
While the central issue in the case was but-for factual causation, there’s nothing in the reasons that should be taken to add to, subtract from, or in any other sense modify anything the Court said in Clements.
In search of sky hooks & left-handed monkey wrenches
and other tools of note.
Once upon a time, a judge of the US Supreme Court, asked to define the meaning of obscenity for criminal purposes, wrote
It is possible to read the Court’s opinion in Roth v. United States and Alberts v. California, 354 U.S. 476, in a variety of ways. In saying this, I imply no criticism of the Court, which, in those cases, was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court’s decisions since Roth and Alberts, that, under the First and Fourteenth Amendments, criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.
Potter Stewart J (concurring), Jacobellis v. Ohio, 378 U.S. 184 (1964) [internal footnotes omitted].
General Damages – future – assessment: Onus? What onus? Whose onus?
The issue is the assessment of the portion of the plaintiff’s future damages where the plaintiff has a relevant pre-existing condition caused by a non-tortious event. What if the evidence is equally balanced pro and con as to what might happen in the future: the future meaning the period after the trial. Since the plaintiff has the onus of proof, does this mean that the plaintiff’s action fails in relation to the claims for which the evidence is equally balanced?
The 4th Monkey Still in Abstenia 