Category: Scholarship
Is it something in B.C. water? air?
The “151” in the top line of the graphic, below, is the number of cases in which Clements v Clements, 2012 SCC 32, [2012] 2 SCR 181 has been cited, in reasons on CANLII, in court or tribunal reasons since Clements was released in mid-2012. It’s 151 times in total, 136 by courts and 15 by tribunals. To be more accurate, it should be 150 since the 151 includes Clements itself at the SCC
The 2nd number in the top line -49 – is the total number of court reasons only since January 2014. It’s 54 if one includes tribunals. The court distribution is: BC 36, AB 3, ON 7, NS 3.
CanLII – Clements cites numbers Aug 2014
Appeals; contract interpretation; worrying about the law, the judges, and the experts
from Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 per Rothstein J.
(a) When Is Contractual Interpretation a Question of Law?
[42] … For the purpose of identifying the appropriate standard of review or, as is the case here, determining whether the requirements for leave to appeal are met, reviewing courts are regularly required to determine whether an issue decided at first instance is a question of law, fact, or mixed fact and law.
The SCC on the parol evidence rule
(c) Considering the Surrounding Circumstances Does Not Offend the Parol Evidence Rule
[59] It is necessary to say a word about consideration of the surrounding circumstances and the parol evidence rule. The parol evidence rule precludes admission of evidence outside the words of the written contract that would add to, subtract from, vary, or contradict a contract that has been wholly reduced to writing (King at para. 35; and Hall, at p. 53). To this end, the rule precludes, among other things, evidence of the subjective intentions of the parties (Hall, at pp. 64-65; and Eli Lilly & Co. v. Novopharm Ltd., 1998 CanLII 791 (SCC), [1998] 2 S.C.R. 129, at paras. 54-59, per Iacobucci J.). The purpose of the parol evidence rule is primarily to achieve finality and certainty in contractual obligations, and secondarily to hamper a party’s ability to use fabricated or unreliable evidence to attack a written contract (United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., 1993 CanLII 88 (SCC), [1993] 2 S.C.R. 316, at pp. 341-42, per Sopinka J.).
[60] The parol evidence rule does not apply to preclude evidence of the surrounding circumstances. Such evidence is consistent with the objectives of finality and certainty because it is used as an interpretive aid for determining the meaning of the written words chosen by the parties, not to change or overrule the meaning of those words. The surrounding circumstances are facts known or facts that reasonably ought to have been known to both parties at or before the date of contracting; therefore, the concern of unreliability does not arise.
[61] Some authorities and commentators suggest that the parol evidence rule is an anachronism, or, at the very least, of limited application in view of the myriad of exceptions to it (see for example Gutierrez v. Tropic International Ltd. 2002 CanLII 45017 (ON CA), (2002), 63 O.R. (3d) 63 (C.A.), at paras. 19-20; and Hall, at pp. 53-64). For the purposes of this appeal, it is sufficient to say that the parol evidence rule does not apply to preclude evidence of surrounding circumstances when interpreting the words of a written contract.
Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53 per Rothstein J.
In passing, somebody far more competent than I am to comment on contract law was also not at all impressed with paras 59-61. That person suggests the discussion is not at all helpful; “fill[s] me with despair” was one of the descriptions used.
I’m cynical enough to believe the passage will produce more work for appellate lawyers. That’s a good thing, right?
What if it had been the gander?
Van v. Howlett, 2014 BCSC 1404
[138] The defendants argue that taking a “robust and pragmatic approach” to causation (see Clements v Clements, 2012 SCC 32; [2012] 2 SCR 181), I should find that Ms. Van’s failure to wear a seatbelt did at least worsen her injuries. If I do not do so, submit the defendants, it effectively prevents the defendant from ever proving contributory negligence in cases of this nature. I do not agree. The expertise available to the defendants to assist in investigating causation was no different from that available to the plaintiff in this or any other case of a motor vehicle collision.
[139] The “robust and pragmatic approach” commended by the Supreme Court of Canada in Clements is not intended to facilitate an end run around the evidence. The Supreme Court made it clear in that case that the test for causation remains a “but for” test, and I am quite unable to find on the evidence before me that but for her failure to wear a seatbelt, Ms. Van would not have suffered to the same extent or at all the injuries for which she seeks compensation. On the contrary, I find that her head, facial and rib injuries, and all of their consequences that are relevant to this enquiry, would have occurred in any event due to the unusual mechanics of this accident. Like the situation considered by the Court of Appeal in Schenker v Scott, , 2014 BCCA 203, “[g]iven the mechanics of this accident and the nature of the injuries suffered, this is not a case where a seatbelt defence could be made out by relying on common sense inferences” (para 43).
[Emphasis added.]
Spot the non-sequiturs and two almost rights don’t make a right
[289] A finding that a defendant’s conduct has fallen below the requisite standard of care does not necessarily make that defendant liable for the plaintiff’s injury. The plaintiff must also prove that the defendant’s substandard conduct caused the injury in respect of which the plaintiff is seeking damages.
[290] The primary test used in determining causation in negligence is the “but for” test. The plaintiff bears the onus of proving, on a balance of probabilities, that “but for” the defendant’s negligent act or omission, the injury would not have occurred: Athey v. Leonati, [1996] 3 S.C.R.; 458 [Athey]; Blackwater v. Plint, 2005 SCC 58 (CanLII), 2005 SCC 58; Clements v. Clements, 2012 SCC 32 [Clements]; Ediger (Guardian ad litem of) v. Johnston, 2013 SCC 18 (CanLII), 2013 SCC 18 [Ediger]. Inherent in the test is the requirement that the injury would not have happened without the defendant’s negligence: Clements at para. 8; Ediger at para. 28.
[291] The plaintiff need not establish that a defendant’s wrongful conduct is the sole cause of his injury. So long as a substantial connection between the harm and the defendant’s negligence beyond the “de minimus” range is established, the defendant will be fully liable for the harm suffered by a plaintiff, even if other causal factors, which the defendants are not responsible for, were at play in producing that harm: Farrant v. Laktin, 2011 BCCA 336; Athey; Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), 2007 SCC 7 [Resurfice].
Chen v. Ross, 2014 BCSC 374
The answers are on the next screen. Don’t peek.
The 4th Monkey Still in Abstenia 