Category: Jurisprudence
Understanding reasons for judgment: Aphorisms for the 1L
The list will appear when you expand the message. Feel free to suggest more. I’ll update the list with the better suggestions.
Don’t call us, we’ll call you
No, not the title of and message in the sly Sugarloaf song, here, though it’s worth listening to.
Rather, its the SCC’s dismissal of the leave to appeal application in Goodman v. Viljoen, 2012 ONCA 896, leave to appeal denied 2013 CanLII 42519 (SCC) (July 11, 2013).
The message the SCC is probably sending is that, in civil cases where the appeal involves factual causation – cause-in-fact – the Court is unlikely to grant leave to appeal on the causation issue where the Court will be able to characterize that issue as merely whether there was enough evidence to support the trial judge’s conclusion.
It’s more than just arguable that that’s entirely the wrong characterization of the problem in Goodman but, on this point, the SCC has spoken.
A trial judge’s duty: correct explanations
More than 1 year has passed since the SCC released Clements v. Clements. More than 6 years have passed since the SCC released Resurfice Corp. v. Hanke.
There is no valid reason for trial judges to still write that a defendant’s negligence “caused or contributed”, or “caused or materially contributed” to the injury, where the trial judge means that, on the balance of probability, the negligence is a cause of the injury. (Leave aside the the questions raised if the trial judge doesn’t explain what he or she meant by “materially contributed”.) The negligence either is a cause of the injury or it is not. If the negligence contributed to the occurrence of the injury, it is a cause of the injury.
An appellate court’s duty: correct explanations
Lawyers, and others, who aren’t experts in the subject matter read appellate decisions, too. That’s one of the ways we learn. That’s one of the ways we become better at what we do.
An appellate court fails one of its duties to the profession, and to the public, if the court explains a decision in terminology which incorrect and misleading, even if the decision is valid on the evidence.
Fault and liability are not synonyms. The members of a BCCA panel forgot that in the reasons in Hansen v. Sulyma, 2013 BCCA 349.
A Koan for Clements
See http://www.slaw.ca/2013/06/27/a-koan-for-clements/
(I’ll eventually repost it, here.)
July 10 – reposted.
The 4th Monkey Still in Abstenia 