Category: Jurisprudence

Clements, class actions, general causation

The statistical possibility of factual causation less than a probability may be enough for general causation in products liability class actions, even if it means the compensated class includes persons whose injury was not, in fact, caused by the product.  See  Bartram v. GlaxoSmithKline Inc., 2012 BCSC 1804 at paras. 27-35.

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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 It’s taken from an as-yet unpublished piece attempting to unravel and order some of the skeins of Canadian common law causation doctrine, in negligence, after Clements.

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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.

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Adventuring with Philosophers: Part 1

[first posted on Slaw, September 25, 2012]

More than a century ago, an early torts scholar (Pollock) wrote that, when it came to causation, lawyers and judges shouldn’t go adventuring with philosophers. Many modern Canadian lawyers and judges are likely more familiar with Sopinka J.’s admonition in Snell v. Farrell against  “abstract metaphysical theory” – the claim that causation is “essentially a practical question of fact which can best be answered by ordinary common sense rather than abstract metaphysical theory.”

On the other hand, fewer modern Canadian lawyers or judges  probably know that a recent article written jointly by a law professor and philosophy professor – an article which certainly has some discussion that some might label “metaphysical theory” – contains a passage that Pollock and Sopinka might have wholeheartedly approved:

An increasing number of philosophers seem to be willing to take the concept of causal connection as a primitive (unanalyzable) concept – one of the conceptual atoms out of which we build more complex concepts or ideas. But one does not need to be overly cynical to wonder whether this embrace is not born out of sheer frustration with the inability to say something interesting yet true about what constitutes the essence of causation. In any event, if the law is waiting for philosophers to offer something better than a prephilosophical grasp of what is involved in one thing causing another, the law had better be very patient indeed.

See R. Fumerton and K. Kress, “Causation And The Law: Preemption, Lawful Sufficiency And Causal Sufficiency” (2001), 64 Law and Contemporary Problems 83 at 105.

And, more than a half-century ago, a famous philosopher, Bertrand Russell, had this to say about the John Locke and Locke’ philosophy.

He is always sensible, and always willing to sacrifice logic rather than become paradoxical. He enunciates general principles which, as the reader can hardly fail to perceive, are capable of leading to strange consequences; but whenever the strange consequences seem about to appear, Locke blandly refrains from drawing them. To a logician this is irritating; to a practical man, it is proof of sound judgement. Since the world is what it is, it is clear that valid reasoning from sound principles cannot lead to error; but a principle may be so nearly true as to deserve theoretical respect, and yet may lead to practical consequences which we feel to be absurd. There is therefore a justification for common sense in philosophy, but only as showing that our theoretical principles cannot be quite correct so long as their consequences are condemned by an appeal to common sense which we feel to be irresistible. The theorist may retort that common sense is no more infallible than logic. But this retort, though made by Berkeley and Hume, would have been wholly foreign to Locke’s intellectual temper.

[Emphasis added]. See Bertrand Russell, A History of Western Philosophy (New York: Simon & Schuster, Inc., 1967) at 606 (paperback) (at 630 in the 1946 George Allen & Unwin edition).

So perhaps Canadian judges and lawyers can afford to go adventuring with philosophers now and again, albeit properly chaperoned and warded, if only to find ammunition for their petards.

After all, isn’t it said that one should keep one’s friends close and one’s enemies closer?