Category: Canadian law
Don’t confuse us with law
A small conundrum involving the SCC’s decisions in Clements and McDougall and the standard of proof as it applies to the impossibility requirement in the material contribution to risk test.
Don’t Confuse Me With The Law
Peso v. Hollaway, 2012 BCSC 1763 is another case where there is a discontinuity between the trial judge’s statement of the law and the trial judge’s conclusion. The result seems to be supportable on the evidence set out by the trial judge. The decision, ultimately, is based on the judge preferring the plaintiff’s evidence over the defendant’s.
Causation in the Air or Adventuring With Philosophers (Manqué): Part 2
When the Supreme Court of Canada uses a phrase it means exactly what the Supreme Court says it does, “neither more nor less”. (Some of you will know the text I’ve quoted from.)
But what if the source the Supreme Court cites as the authority for the meaning of that phrase explicitly denies the meaning that the Supreme Court gives it?
In this article, I look at the Supreme Court’s use of the concept of “corrective justice” in everybody’s favourite case: Clements v. Clements, 2012 SCC 32.
Once upon at time, in the last millennium, law students learned that “negligence in the air … will not do”. That maxim, as it happens, came from the pen of the same person (Frederick Pollock) who’d warned them against adventuring with philosophers.
One consequence of Clements is that, in some cases, negligence in the air will do as part of the basis for liability: “negligence in the air” meaning the negligence of a defendant held liable to a plaintiff which is not held to be, on the balance of probability, a factual cause of the injury in respect of which that defendant is held liable to that plaintiff.
What you’ll find below is a discussion of Clements use of “corrective justice” as justification for the material contribution to risk doctrine. It’s taken from an as-yet unpublished piece attempting to unravel and order some of the skeins of Canadian common law causation doctrine, in negligence, after Clements.
Two Passers, Two Hunters
[first posted on Slaw, Nov 2, 2012]
When jurisdictions enact new legislation governing limitation periods for causes of action, the legislation will deal with the transition between the old regime and the new. Transition provisions are needed because incidents alleged to create causes of action may have occurred while the old legislation was in force but the action was not commenced until after the new legislation took effect.
Duchesne v. St-Denis, 2012 ONCA 699 is such a case.
It is an important case for Ontario lawyers on the interpretation of Ontario’s the Limitations Act, 2002, particular where the injured person was under the age of majority when the injury occurred. It may also be relevant to other Canadian jurisdictions which have equivalent legislation.
Yeah … well… but …
Quinn v. Leathem, [1901] A.C. 495 at 506 (H.L.)
[A] case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.
The 4th Monkey Still in Abstenia 