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?
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.
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.)
I have discussed the case here and here. The SCC did not, as is its current practice, provide reasons for granting leave. However, we can glean what the parties think the issues are, or are not, from these excerpts from the Applicants’ and Respondents’ factums.
When the Supreme Court of Canada says “X” in 2007, and repeats “X” in 2011 adding explicitly that “X does not mean Y but means Z”, it is reasonable to assume (is it not?) that, once word of what was said in 2007 and repeated in 2011 spreads through the “jurisprudential aether”, however long that takes, the judges of the lower courts in Canada will pay attention.
It’s always worth quoting this reminder about pecking orders in the Canadian judicial universe:
 Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder.
 I am bound by decisions of Queen’s Bench judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada. Very simply, Masters in Chambers of a superior trial court occupy the bottom rung of the superior courts judicial ladder.
 I do not overrule decisions of a judge of this court. The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.
See South Side Woodwork v. R.C. Contracting, 95 AR 161, 1989 CanLII 3384 (AB QB)
Given the above, the concept of common sense, meaning whatever it is that common law judges advert to when they call on that concept to provide an explanation for a conclusion, requires us (does it not?) to conclude:
(1) the Court of Appeal of Newfoundland and Labrador would be aware, by now, of what the Supreme Court of Canada declared an aspect of Canadian law to be, in common law Canada,
almost 6 about 8 years ago, or at least about 4 years ago, because about 4 years and certainly about 6 8 years is more than enough time for some medium to transport the information contained in the SCC’s statements from Ottawa to St. John’s;
(2) the same proposition applies to the state of knowledge of lawyers in St. John’s who practice in the relevant area of law; certainly, at least, those professing expertise in the area.
If you accept (1) and (2) what could be the explanation for what happened in the case I’ll quote from immediately after the break?
No, it’s not a case from the province on Canada’s Western coast. Or any of the territories on Canada’s northern coast. Not even a Prairies, Central Canada, mainland Atlantic Canada, or Canada’s smallest province, case.
Regular enough readers of this blog know that I tend to harp on the judicial obligation to set out the applicable law correctly.
Some readers of this blog who still remember their university days may remember finding out that it wasn’t enough to get to the seemingly correct answer. You had to explain, correctly, how you got that answer. You might, depending on what the mistake was, still get a passing grade on the question; however, you might not.
However, lawyers who are in practice soon learn, if they didn’t at law school, the ultimate rule: appeals are from the result – the judgment – not the reasons for judgment. There is no miscarriage of justice if it is sufficiently clear (whatever sufficiently means in the particular case) that the error in issue did not make a difference; that the result is the result required on the facts. The Supreme Court of Canada wrote in R. v. Sheppard,  1 SCR 869, 2002 SCC 26:
 The appellant Crown contends that “[i]t has been a settled principle of Canadian law that a trial judge does not have to give reasons” (factum, at para. 13 (emphasis in original)). This proposition is so excessively broad as to be erroneous. It is true that there is no general duty, viewed in the abstract and divorced from the circumstances of the particular case, to provide reasons “when the finding is otherwise supportable on the evidence or where the basis of the finding is apparent from the circumstances” (R. v. Barrett,  1 S.C.R. 752, at p. 753). An appeal lies from the judgment, not the reasons for judgment. Nevertheless, reasons fulfill an important function in the trial process and, as will be seen, where that function goes unperformed, the judgment itself may be vulnerable to be reversed on appeal.
 At the broadest level of accountability, the giving of reasoned judgments is central to the legitimacy of judicial institutions in the eyes of the public. Decisions on individual cases are neither submitted to nor blessed at the ballot box. The courts attract public support or criticism at least in part by the quality of their reasons. If unexpressed, the judged are prevented from judging the judges. The question before us is how this broad principle of governance translates into specific rules of appellate review.
 The appellant relies on this statement as establishing a simple rule that trial judges are under no duty to give reasons, but it seems to me, on the contrary, that this Court did expect trial judges to state more than the result. McLachlin J. anticipated at least “their conclusions” on the main issues (though perhaps not “collateral” issues) at least “in brief compass”. Further, as pointed out by O’Neill J.A. in the court below, the observations in Burnswere substantially qualified by the use of the words “all”, “general”, “merely”, “all aspects”, “in itself”, “every aspect”, “in brief compass”, and “collateral aspects”. What was said in Burns, it seems to me, was that the effort to establish the absence or inadequacy of reasons as a freestanding ground of appeal should be rejected. A more contextual approach is required. The appellant must show not only that there is a deficiency in the reasons, but that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in a criminal case.
[Emphasis added in para 4; underlining emphasis added in para. 33; other emphasis in original in para. 33.]
R. v. Sheppard applies in at least some areas of private law, includes claims for damages in tort and contract: see Cojocaru v. British Columbia Women’s Hospital and Health Centre,  2 SCR 357, 2013 SCC 30; Hill v. Hamilton-Wentworth Regional Police Services Board,  3 SCR 129, 2007 SCC 41 at paras. 100-101; and, at the provincial appellate level, including: Bunan v. Toronto-Dominion Bank, 2015 ONCA 226 at para. 20 (” … the test on appeal is whether any deficiency in the reasons has occasioned prejudice to the exercise of [the appellant’s] legal right to an appeal” [internal quotations marks omitted]); Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231, 2015 ONCA 520
 Having concluded that the reasons of the Small Claims Court were facially incapable of appellate review, the Divisional Court was obliged to consider the record before the trial judge to determine if the reasons were more comprehensible when read in the context of this record.
 The level of requisite detail in reasons will be lessened “[w]here the record discloses all that is required to be known to permit appellate review”: Hill v. Hamilton-Wentworth Police Services Board, 2007 SCC 41 (CanLII),  3 S.C.R. 129, at para. 101. If a detailed record is available, the appellate court should not intervene “simply because it thinks the trial court did a poor job expressing itself”: R. v. Sheppard, 2002 SCC 26 (CanLII),  1 S.C.R. 869, at para. 26.
See also Paragon Capital Corporation Ltd. v Morgan, 2014 ABCA 363 at paras. 47-49; Wadden v. BMO Nesbitt Burns, 2015 NSCA 48 at para. 63. This link will take you to a CanLII search result for appellate decisions across Canada over the past year (Sept. 2014 – Sept. 2015). Change the date filter to increase the range.)
Is there at least some inconsistency between the statements in the second and third paragraphs I wrote above? Yes. Welcome to the legal system. It’s called circular breathing: the ability to suck and blow at the same time.
More after the break.