Category: Scholarship
If … (East)
trial judges across Canada continue to misstate or misunderstand Supreme Court of Canada decisions, do we blame the SCC or the trial judges? I plan to post a series of examples in individual messages. This is the first.
I’ll start with a recent decision from Nova Scotia: National Bank Financial Ltd. v. Potter, 2013 NSSC 248.
Some of you might recall the underlying facts. If you’re unlikely, some of you might have an unhappy reason to recall the underlying facts.
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.
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.
FREE Snarks and Boojums
One of the perqs (?) of writing for traditional, paper, law journals is the author’s offprint. One of the problems of writing for those journals is what to do with most of those offprints if one wants to keep one’s friends who aren’t compelled to accept one. They’re (the offprints, not the friends) aren’t as convenient as the old-style paper matchbooks for levelling off-kilter restaurant tables and the like.
The 4th Monkey Still in Abstenia 