Category: Causation
Just rattle your jewellery
Readers of this blog who feel compelled to recite hosannas about the state of the Supreme Court of Canada’s jurisprudence dealing with causation in negligence – both factual causation and normative causation (i.e., legal causation without factual causation: think “material contribution”) and the need to separate the issue of causation from the issue of compensable damage – would do well to read, and consider, a very recent article by one of the deans of the subject in the Commonwealth: Jane Stapleton, “Unnecessary Causes”, 2013 128 Law Quarterly Review 39. The article is succinct enough (26 pages). It has subheadings, too. While the piece is notionally about United Kingdom law, it is generally applicable to common law Canada and has a section on Clements. The article is available online if one has access to Westlaw.
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].
British Columbia: RIP Moore v. Castlegar?
if the B.C. Court of Appeal is prepared to listen to the views of the Ontario Court of Appeal on the meaning of Clements v. Clements, 2012 SCC 32, on this issue, assuming the Supreme Court of Canada doesn’t comment on this issue in its Ediger reasons (appeal argued December 4, 2012, judgment reserved), whenever they’re released. See Goodman v. Viljoen, 2012 ONCA 896 at paras. 70-76. The text of the paragraphs is quoted later in this posting.
(updated Jan 9/13: added CanLII citation and the last 2 sentences above)
Only in British Columbia, eh?
(but not yet any other province ending in “a”).
Or, how to conflate factual causation – what caused what – with the separate limitation of liability question(s) of remoteness – is there any reason, in law, that this particular factual cause should not be treated as a legal factual cause so that the court may then consider if the plaintiff has satisfied the rest of the requirements of the cause of action.
A problem with boilerplate
Those of you in British Columbia who (need or ought to) care about such things may have noticed an almost boilerplate quality in the paragraphs in recent British Columbia Supreme Court decisions setting out the principles of factual causation in negligence. This, on the whole, is a good thing and the judges should be commended.
On the other hand, what’s not good is that the boilerplate is literally wrong. (It’s still safe for me to say these things since I don’t have to appear in front of British Columbia judges.) So far, though, that hasn’t seemed to affect the validity of the judges’ decisions.
The 4th Monkey Still in Abstenia 