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.
One would hope that if a Canadian trial judge is going to quote or paraphrase any summary of Supreme Court of Canada law, the trial judge would use the Supreme Court’s own summary. This doesn’t require a Homer Simpson palm slap to the forehead for emphasis.
That didn’t happen, again, in a decision a judge of the British Columbia Supreme Court. Instead, the trial judge used something else from somewhere else that, by almost 4 years after the SCC decision that established the law, should be known to be wrong even in the remotest regions of British Columbia.
But who won the war?
“I meant what I said, and I said what I meant.” (Horton Hatches The Egg, Dr. Seuss (1940))
Sometimes, though, if we accept Horton’s statement as true, there’s room to wonder if the judge(s) said what they meant when one considers the consequences of what the judge(s) said to the next case with slightly different facts, even if the result is what the judge(s) seem to have intended in the particular case.
That is, if one applies what the judge(s) said for what they said.
Those of you who know the Quinn v Leathem aphorism might consider it. The rest of you could look it up. It’s on this blog.
I’m not in Kansas any more. I don’t have to pull my punches.
1. An existing WTF
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.)