Category: Scholarship
The “robust and pragmatic” approach: Abracadabra or As Night Follows Day
You’ll have to follow the bouncing ball or, in this case, the quotations from the cases. The commentary follows the quotations.
If … (Ontario) – Presumption of regularity
If a trial judge
1. quotes a summary of the law, as set out by the SCC, that’s more than 5 years out of date and is no longer correct, according to the SCC – ignoring whether that summary is accurate in the first place – probably because he or she has taken it from a now “overtaken” appellate decision of the judge’s appellate court;
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.
All you need is … the facts (usually)
even if the trial judge misstates the law. Or it’s not clear what the judge thought the law is.
That’s why appeals are, broadly, from the evidence, not the judge’s reasons.
If … (intermezzo)
Assume that Clements material contribution to risk and Walker Estate material contribution to injury do not apply.
If, during argument or submissions on causation, a judge (motion, trial, appellate) suggested to you that, on the balance of probability, it was commonsense that the defendant’s fault (or the plaintiff’s contributory fault) was a factual cause of the plaintiff’s injury, would you risk asking the judge what “commonsense” meant?
The 4th Monkey Still in Abstenia 