Category: Scholarship
Who’s the Boss
[Originally posted on Slaw.ca on September 7, 2012]
A very witty Master of the Alberta Supreme Court once wrote:
[51] Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder.
[52] I am bound by decisions of Queen’s Bench judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada. Very simply, Masters in Chambers of a superior trial court occupy the bottom rung of the superior courts judicial ladder.
[53] I do not overrule decisions of a judge of this court. The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.
South Side Woodwork v. R.C. Contracting (1989), 95 AR 161, 1989 CanLII 3384 (AB QB, Master)
Whence the title of this posting.
Score One For The Trial Judge – or Just The Facts Ma’am
Consider the position of the trial judge caught between his or her own Court of Appeal and the Supreme Court of Canada.
Litigants are at the mercy of their lawyers and the trial judge, regardless.
Even when the trial judge may well be right. Especially where it seems the trial judge was right.
A Third Telling
Is the common law meaning of causation under the but-for test now the same in British Columbia as it is in Ontario, or Newfoundland? Or the rest of the common law provinces and territories?
Will the “meaning” of Clements v. Clements, 2012 SCCC 32, adopted in each of the Canadian common law jurisdictions be the same meaning is an “interesting” question. Well, it is interesting for some people. It will be interesting for plaintiff-litigants who have a choice of proper jurisdictions within which to sue. It will also be interesting for defendant-litigants who are considering a motion to have an action stayed or dismissed in one Canadian jurisdiction on the basis that another Canadian jurisdiction the proper, or the better, forum. It might also be interesting for judges deciding the certification question in a “mass tort” class action where the plaintiffs come from more than one province or territory.
It might not be the same meaning initially.
It might even take another visit to the Supreme Court of Canada to answer that question. Remember that, in the 5-year interregnum between Resurfice Corp v. Hanke, 2007 1 SCR 333, 2007 SCC 7, the Courts of Appeal of British Columbia (and seemingly Alberta) on one side, and Ontario on the other, did not agree on the meaning of the Resurfice material contribution declarations. In addition, none of these courts ever acknowledged the existence of the other opinions.
Clements now establishes what Resurfice must be understood to mean so the old dispute about the meaning of Resurfice does not matter.
The other question, then, is whether we will soon have a new dispute extending to the meanings of both but-for doctrine test and material contribution doctrine.
As ever, it wouldn’t hurt to have a glass or cup of your favourite tipple nearby.
The Weight of Nothing
According to the most recent reminder from the Supreme Court of Canada, the application of common sense in a robust, pragmatic, manner, will provide the answer to the factual causation question – is the defendant’s negligence more likely than not a necessary cause of the injury – in most cases where a plaintiff alleges that the plaintiff’s injury was caused by negligence for which the defendant is responsible. See Clements v. Clements 2012 SCC 32 at paras. 9, 10, 23, 38, 46(1).
On the other hand, we must not forget that it was once “Western” common sense that witches existed; the Earth was flat, the centre of the universe, and the Sun rotated around the Earth; Heaven and Hell were physical places; diseases were caused by an imbalance of humours; if one could travel fast enough, one could catch light; women were the property of men; Homo Sapiens did not evolve from earlier forms of hominid but has always had its current form; and creation occurred on the night preceding Sunday, 23 October 4004 BCE (by the Julian calendar).
Really.
A good friend reminded me, recently, that there are parts of Canada where some the items in that list are taken as gospel. (He wasn’t referring to Ottawa.)
Spilling Ink
As some readers know, the Supreme Court of Canada (the “SCC”) wrote in 2007: “Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful to catalogue the various debates.” (Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 SCR 333 at para. 20)
About 5 years later, the Supreme Court found it necessary to spill some more ink on the subject because, in its own words, its discussion in Resurfice of at least one very important aspect of the subject was “incomplete”: Clements v. Clements, 2012 SCC 32 at para. 34.
I plan to spill some more of the electronic equivalent, pixels, to show why it was and still is both necessary and helpful to catalogue (maybe even refer to) at least some of the various debates, and why it would have been helpful if the Supreme Court had been just a bit less dismissive, and more careful, in both Resurfice and Clements.
Pull up a chair and a glass (or more) of your favourite tipple. As ever, these posts assume that the reader has a basic level of familiarity with the subject matter.
The 4th Monkey Still in Abstenia 