plus ça change, etc
I suppose one good consequence, effective May 1, 2021, of British Columbia abolishing most of the right to sue for personal injuries sustained in motor vehicle accidents, in British Columbia, and going to a no-fault system, is that, eventually, its trial judges and personal injury lawyers will have fewer opportunities to display one or both of (a) their apparent lack of knowledge of the applicable law or (b) their apparent belief that the Supreme Court of Canada judgments don’t apply to British Columbia.
For example, there will be few opportunties for trial judges and trial lawyers to claim that this is BC law on proof of factual causation in tort: “The ‘but for’ test recognizes that compensation for negligent conduct should only be made where a substantial connection between the injury and the defendant’s conduct is present: Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21-23.”
It’s very possible that mistakes like this would decrease if trial judges would stop plagiarizing … I mean copying from portions of plaintiff counsels’ written submissions which were last updated sometime before 2010 and were wrong, then.
It’s worth wondering why the trial judges and lawyers who keep making this type of mistake can or won’t plagiarize … I mean cut and paste from something more current.
The Toronto Star commenting rules are contained in the Star’s community guidelines. The relevant portion of the guidelines appears in the “Our Story” portion of the Star’s Facebook (FB) page. It is attached at the end of this commentary. In theory, FB’s own community rules are the same in relation to posting and commenting behaviour. It maybe that the “Our Story” guidelines for the Star page on FB are the FB community rules. I have not checked. That issue does not matter for the purpose of this commentary because the comment sections on the Star’s FB page are governed by FB under FB’s rules.
In theory, if the the behaviour rules were applied, the comment sections for any Star article that’s the slightest bit controversial in any way would still be a place for civilised, informative, conversation. That is not the case, as the Star’s management must know: both in the Star’s own comment sections and those in the Star’s FB page.
In practice, in the FB world, for reasons having to do with US law, FB decisions about what’s best for FB commercially, and whatever other reason Mr. Zuckerberg might have that he’s not revealed, FB comment sections for anything that could be controversial are a cesspool of everything they’re not supposed to be. The comment sections for the Star articles on the Star’s FB page are managed by FB’s programmes since the Star FB page and the articles are on the FB platform.
The comment sections are managed by “think dirty” malignant algorithms which, as only “dumb” computer programmes, are too often unable to distinguish between compliant and non-compliant behaviour and so adopt the the orthodox Catholic response to the Albigensian / Cathar heresy: Kill them all; God will know his own”.
Where FB exacerbates that problem by making an appeal impractical.
Where the result is the “Bad Guys” rule.
Where there’s no point in “The Good Man”coming to town because the algorithms will gun him down long before he gets to the point of being able to confront Liberty Valence at high noon.
The result is that the comment sections for every article that is the slightest bit controversial to anybody are a cesspool of everything the rules say ought not to happen, even though most articles are behind the Star paywall so that all that is visible is a picture, the caption, and a bit of the lede. That’s undoubtedly because the Star is “chum central” for any right wing ‘phobe of any kind in Canada and anybody who has heard of it in the US and elsewhere who is looking for a more exotic place to shit.
If the rules were enforced by FB, as written, most of the comments would be deleted; most of the commentators banished. anybody who doesn’t want to risk mud-wrestling with pigs doesn’t visit.
If the comment thread is started by a person with good things to say about the article, the trolls attack the person and the the article and the Star. One or more good defender may respond but there are always more trolls. The good folk don’t bother to complain to FB. It would be like bailing the World Ocean with a pinky sized thimble.
If the the comment thread is started by a troll, the troll might or might not be picked off as low-hanging fruit by a defender. The trolls will usually shit enough turds that at least one will draw some interest. If it is confronted for what it is, the troll will eventually go away, because it visisted only to shit. Or it will first complain to FB about harassment or bullying then go away; having accomplished its purpose of shitting in somebody else’s pool and fouling the water.
The complaint to FB? That will usually trigger the algorithm to sweep up the defender, leaving the troll to troll some more. The FB response to comments and posts which are “only” breaches of its community standards, and not illegal under US law, is a graduated series of suspensions starting at short periods of “only” no posting and commenting moving up to longer periods and finally account banning.
If both troll(s) and defender(s) are able to keep the skirmishing below whatever triggers the algorithms, the skirmishing goes on as long as troll and defender want to. Anybody else who has anything more worthwhile to do, starting at least as low as cleaning toe fungus, leaves.
The section becomes sterile.
The Toronto Star management knows this.
Why does the Star tolerate this?
Because, in theory and practice it has no choice as regards the situation on the FB platform. The FB platform is governed by US law. The content of the Star’s articles; and the posts and comments in the comments sections are similarly governed by US law.
Hate speech is legal under US law; in the sense that the content of what we, in Canada, would call “hate speech” will be protected, under the 1st Amendment to US Constitution from prior restraint and cannot be made illegal or otherwise sanctioned (punished) by the state so long it falls within the parameters of the right of freedom of expression as explained by the Supreme Court of the United States.
FB has attempted to elide the constitutional freedom of expression protection of hate speech by including provisions prohibiting hate speech in its Community Standards. But rules, private or public, are no good if not enforced and there is not voluntary compliance. In practice the trolls do not voluntarily comply.
Indeed, if it were the case that most trolls voluntarily complied, it would also probably be the case that Trump would not have been elected President of the US in 2016 and the past 4 years would have been entirely different. If, for some reason he had been elected, the past 4 years would still have been different and he would have lost the popular vote by far more than just 5 million and some votes; slightly than 72,200,000 Americans would not have voted Trump.
In practice, for a number of reasons not limited to the resources it would take for FB to adequately police the comment sections on its platform, FB is unable to enforce the ‘no hate speech” rule without, in Albigensian Heresy terms, killing both the heretics and the innocent.
It appears that, in practice, the same situation exists in the comment sections on the Toronto Star’s own website. The Star, as Canada major politically centre-left paper, is the target for every “deplorable” in Canada, a many from outside Canada, with access to the internet and the desire to shit in somebody else’s pool.
The unfortunate truth is that, people being what they currently are, bad tends to trump good at first instance; evil and hatred drive good away, and comment sections become sterile deserts.
For those of us who lived through the era after Compuserve was bought by AOL, then ultimately shutdown by AOL: Plus ça change, plus c’est la même chose.
(I might add some more to this over the next two weeks; however, you should presume that it won’t change what I’ve said above.)
The amount and opaqueness of judicial and practitioner jabberwocky varies directly with the speaker’s inability to explain, adequately, why the desired result is the legally required and better result.
An orthodox statement of Hanlon’s Razor: “Never attribute to malice that which is adequately explained by incompetence.”
Legal corollary #1: Never attribute to incompetence that which is adequately explained by intellectual dishonesty.
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.
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.