Category: Scholarship
British Columbia: RIP Moore v. Castlegar?
if the B.C. Court of Appeal is prepared to listen to the views of the Ontario Court of Appeal on the meaning of Clements v. Clements, 2012 SCC 32, on this issue, assuming the Supreme Court of Canada doesn’t comment on this issue in its Ediger reasons (appeal argued December 4, 2012, judgment reserved), whenever they’re released. See Goodman v. Viljoen, 2012 ONCA 896 at paras. 70-76. The text of the paragraphs is quoted later in this posting.
(updated Jan 9/13: added CanLII citation and the last 2 sentences above)
Only in Canada, eh?
“In essence, Bayes’s theory furnishes a mechanism for incrementally revising probability estimates in light of new information, thereby allowing a fact-finder to update continually an opinion about the relative likelihood of a fact.” Russell Brown, “The Possibility of ‘Inference Causation’: Inferring Cause-In-Fact And The Nature Of Legal Fact-Finding” (2010) 55 McGill L. J. 1 at 27-28 [Brown “Inference Causation”].
“Bayesian methodology suffers from several defects, however, making it incompatible with legal fact-finding.” Russell Brown, “Inference Causation” at 28.
Brown sets out the defects succinctly. I don’t propose to repeat them. Others hold different views. The literature is extensive. And easily found.
Litigation: A Purifying Ordeal?
“Above all, he has to form his ideas without the aid of the purifying ordeal of skilled argument on the specific facts of a contested case.” [Citations below]
A problem with boilerplate
Those of you in British Columbia who (need or ought to) care about such things may have noticed an almost boilerplate quality in the paragraphs in recent British Columbia Supreme Court decisions setting out the principles of factual causation in negligence. This, on the whole, is a good thing and the judges should be commended.
On the other hand, what’s not good is that the boilerplate is literally wrong. (It’s still safe for me to say these things since I don’t have to appear in front of British Columbia judges.) So far, though, that hasn’t seemed to affect the validity of the judges’ decisions.
K-k-k-k-k-Katmandu
[Originally posted on Slaw.ca – Sept 15, 2012]
But for the moment we’ll stick to k-k-k-k-k-causation and contribution.
Does Clements-Resurfice material contribution apply between tortfeasors claiming contribution?
Is there any reason in principle not to allow contribution between tortfeasors where their liability to the plaintiff is based on material contribution?
I can’t see one.
(Other than that if we take Clements at face value its ratio deals only with causation injury in claims for damages in claims based on negligence.)
In principle, there is nothing about the material contribution doctrine to risk doctrine that necessarily limits it to being a basis for causation of plaintiff’s claims for damages.
Causation is causation is causation.
(You won’t find an answer in the contribution statutes. Trust me on that one.)
Pull up a chair, etc. This one is somewhat long.
The 4th Monkey Still in Abstenia 