Category: Canadian law

Factual Causation: Never say never, but …

For those who care:

You’ll find, at the link, the PDF version of the (revised version) of the PowerPoint slides I used, last month, as part of a lecture titled “A Plea For Coherence: Making Sense of Factual Cause”  I gave in Vancouver on May 5, 2017 at UBC’s law school.

Cheifetz-Factual-Cause-May 2017 revised June 2017- reduced size

The subject shouldn’t surprise some of you:  the incoherent state of proof of the jurisprudence on proof factual causation in negligence in Canada.

I have specifically not dealt with the issue of the use of statistical evidence. That is yet another area within the Canadian jurisprudence that needs a Stygian Stables level clean-up.

The “never say never” in the title of this posting refers to the likelihood that, unless there’s a radical change in my foreseeable future, this is last time I’ll write anything focused on the state of the Canadian jurisprudence on this subject.

I am not aware of any reason to expect – meaning any cases in respect of which leave has been granted where the issues ought to be considered – that the Supreme Court will do anything to clarify the various problems in the foreseeable future.

Perhaps this means that what is needed is for some inventive counsel to convince an appellate court to misuse an SCC decision, as plaintiff’s counsel did with Walker Estate in Resurfice; or, for a trial judge or appellate court to accept, as I point out in the paper, that the SCC jurisprudence requires the conclusion that, in Canadian negligence law, events may occur without having causes (and not just in Stoner, B.C.).

I began the published process of attempting to make sense of the Canadian jurisprudence in an article where the subtitle was “The Hunting of the Causative Snark”. Some of you will know that I completed the process about a decade later in an article which might as well have had the subtitle: “The Snark Is A Boojum”.

If you wish, imagine that my May 2017 piece has the subtitle: “Understanding Original Canadian Jabberwocky”.

I’d have used “Original Canadian Gibberish” but Mel Brooks is still alive to complain that “Blazing Saddles” is too good for that association. I’d have to agree.  On the other hand, Lewis Carroll is not alive to complain although he’d be right, too, if he could and did.

DC

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Alternate Facts In Canada: A Lie By Another Name Is Still A Lie Even In The GWN During Stanley Cup Season

“Federal spies, lawyers schooled in honesty after fallout over warrants”  http://www.theglobeandmail.com/news/national/federal-spies-lawyers-getting-crash-courses-on-court-honesty-after-fallout-over-warrants/article34720293/

The explanation, according to Murray Segal – (http://www.murraysegal.com/about-murray-segal.html) – is apparently the government lawyers failure to always be “comprehensive”.

“Speaking to The Globe and Mail, Mr. Segal suggested it is getting harder for spy-agency officials to tell judges everything they need to know. CSIS and its lawyers “are well-intentioned and extremely hard-working people who do high-, high-pressure work,” he said. The recent shortcomings, he added, were not about falsehoods so much as “not always being comprehensive in terms of bringing to the table all the issues a judge issuing an order might want to have.”

Sorry, Murray, though nice try but: a lie by any other name is still a lie and still smells rotten, even on the banks of the Ottawa & Rideau.

“Not always comprehensive” has to mean “incomplete” and therefore “not entirely accurate” and “misleading”. The federal gov’t lawyers either knew that or they didn’t. If they knew that they were in contempt of court. If they didn’t, that’s either because (1) they were wilfully blind; (2) reckless; (3) competent and diligent but honestly mislead; (4) incompetent; (5) some combination of all of these factors. In any event, if the reports to the courts were incomplete and the gov’t agencies knew, the gov’t is in in contempt of court.*

It’s as simple as that.

Mr. Segal’s well-honed bullshit facility – developed no doubt in his years working for and with Ontario governments – must have been working overtime for this one.

What’s also worth asking is why the Globe editors weren’t prepared to ask the article writer to rewrite the story story so it makes the point I’ve made. I’m assuming, of course, that somebody on the editorial board saw this, if the writer didn’t.

But, then, my guess is that if he’d used clear English, he’d not get the next similar gig.

*There is, of course, a 6th choice. The lawyers were “only following orders” and (a)  knew exactly what they were doing and thought it was proper conduct or (b) knew it wasn’t but didn’t want to complain lest they lose their jobs. Ain’t life as a working gov’t lawyer grand?

 

On Writing For Law Reviews

One of the potential banes of writing for some Canadian law school law reviews and most American law school law reviews is the student editors. It’s not only the mostly unknown contributors who face having their paper rewritten by the assigned editor(s) for style and content, often extensively and heavy-handedly. (It’s well worth asking why it is the editors think they know better than the author, where the change isn’t merely one of citation form.) Even the academic elite sometimes face that problem; even when they’ve submitted an article they were asked to write for the review. At a talk in Oxford, yesterday, about HLA Hart, one of the (now and then eminent) speakers recounted his horror story. His solution? Tell the professor who was ultimately responsible for the review, and the student’s activities, that, in the circumstances, the speaker felt obliged to withdraw the article.

You can guess what happened: the professor promptly instructed the student editor(s) to reverse their changes. They were.

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Contribution Theory

Contribution is a label used to describe the remedy that A has against B to recover some portion of the money A paid to C that C could have recovered from either of A or B, where A’s payment to C reduces the amount of B’s liability to C by some portion of the amount of A’s payment. The traditional justification for allowing A to collect from B is that A’s payment benefits B to the extent that it reduces the amount of B’s liability to C. It is usually said that this benefit to B is a necessary element of a successful contribution claim. However, in some circumstances, an event occurs after the common liability of A and B to C came into existence which has the effect of providing B, but not A, immunity to a claim by C in respect of the loss for which A and B once had the common liability. A pays C after that event occurs, at a time when B is no longer liable for any portion of the amount A pays to C. A then claims contribution from B. B’s defence will be that the contribution claim must fail because of B’s immunity to C’s claim. B asserts that A’s payment to C did not benefit B because B can not be held liable for any portion of that amount, therefore A cannot establish a prerequisite for contribution. Will A’s contribution claim succeed or fail?

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When I use a word

Over on Slaw, I’ve written a rant, and posted it, too, about yet another judge’s problematic use of “substantial connection” when seemingly discussing the meaning of factual causation in the Canadian law of negligence.

humpty

This one isn’t about a B.C. decision. The context is a motion by a defendant, in an Ontario action, to dismiss the action. The motion – an application for B.C. types – failed. I think it’s a safe assumption that the motion judge isn’t a regular reader of this blog, let alone a follower. Besides, the Rockies are in the way.

(Image from taken from a public domain version of the text of Lewis Carroll’s “Through The Looking Glass”. You’ll find it in c. 6.)