March 29, 2007
As a civil practitioner, it's my job not only to advise clients about the legality (actionability) of past conduct, but also about the likely legality (actionability, risk of actions etc.) of proposed conduct which might create new issues. That means I need to know what reported cases the highest court in the land thinks are relevant to the area in issue, to the general principles governing the area, to be able to see what's there that might be relevant. Maybe there are similar facts. Or maybe there's something from which I can deduce / infer / extrapolate a rule that might apply. I'm prepared to assume, from what the Supreme Court has said in a recent case, that the current members of the SCC would disagree with what Lord Halsbury wrote about precedent in in Quinn v Leathem, [1901] AC 495 at 506 (HL):
Now, before discussing the case of Allen v. Flood and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.
So, while it it might be broadly acceptable, even convenient, in abstract jurisprudential terms, for the SCC to wait until a controversy is "wholly" ripe, that doesn't do the public any good; nor the practitioners called to give advice; nor the trial judges, nor even the provincial appellate courts.
I'm concerned, then, when all I have from the highest court is the bald statement that: "[i]t is neither necessary nor helpful to catalogue the various debates. It suffices at this juncture to simply assert the general principles that emerge from the cases" (Resurfice Corp. v Hanke, 2007 SCC 7, para 20), without any clear identification of the cases meant and from which the so-called principles are said to emerge. I'm left with this - if those aren't the cases, merely examples, or if there are better cases since those were cited only as examples (leaving casuistry aside) - what cases did the SCC have in mind? Why do we have to guess?
It's my view that I, and other members of the profession at the front line, can't do our jobs properly if that's what we get from our highest courts. I'll leave for another day any question of whether the principles cited in Hanke comport with those from any case currently part of Canadian jurisprudence.
Am I over-reacting? Comments?
8 Comments
What should I deduce from the deathly silence?
So, I'll talk to myself for a time. I'll start (I hope) the discussion by including two other recent SCC private law decisions which, in my view, provide practitioners with very little useful help. There's basis to strenuously argue that the relevant jurisprudence gets less. Now, given that we have to assume that the SCC agreed to hear the appeals because they involved at least one issue of national importance....
In addition to Resurfice v. Hanke, consider the recent SCC decisions in Young v Bella and Childs v Desormeaux.
Young v Bella, 2006 SCC 3, [2006] 1 S.C.R. 108.
Y v B tells practitioners that you CAN get more than the the current cap on general damages for non-pecuniary loss - the pain and suffering and loss of amenities (solace) award - so long as your claims are based only on psychological injury (recognized psychiatric illness) AND do not arise out of catastrophic physical injuries. On this basis, the plaintiff in Ontario's recent "fly in the water bottle case", had his case succeeded, could have received more than the cap for his trauma on seeing the fly than somebody rendered quadriplegic by negligence.
Y v B means that in an action claim for injury caused by negligence, Canadian courts can award general damages for pain and suffering (solace for loss of amenities of life) in excess of the trilogy cap so long as pain and suffering claim is not based on catastrophic physical injuries as a result of negligence. It is ONLY the claims for pain and suffering of people who suffer catastrophic physical injuries due to the negligence of another whose claims are subject to the cap. The the claims of people who don't suffer physical injury but allege only psychological trauma are not.
Or, the Supreme Court changed the law applicable to defamation, and negligence, without telling anybody, so the plaintiffs may receive awards for non-pecuniary loss for alleged damage to reputation in an action alleging injury caused by negligence, even though the facts won't allow the claim to succeed as a defamation action (libel or slander.)
The moral of Y v B is that the Stones are sometimes wrong. You may be able to get what you want, even if it isn't what you need.
Childs v Desormeaux, 2006 SCC 18, [2006] 1 S.C.R. 643
How much more more than merely being a private (non-commercial) social host is enough to create liability for injuries caused by the negligent conduct of a person who becomes impaired at the function?
What Childs tell us is that the mere fact somebody is a social host is not of itself a sufficient basis to hold the host liable for injuries caused by the impaired driving of a person who became impaired at the party. Being a host plus something more may be enough; however, being a host plus merely knowing that the person is driving away impaired is still not enough. Why? Because, if you read the trial reasons carefully, you'll see the trial judge held that the male host at least ought to have known (arguably really, really, Really, knew) that Desormeaux was impaired.
The moral of C v D is that if you over-reach, you not only WON'T get what you want, you also won't get what you need.
I agree with the thrust of David’s argument that the Supreme Court gives very poor guidance in the whole area of private law and makes the task of advising clients much more difficult than it needs to be. What particularly distresses me is not just what the Supreme Court does so to speak by itself, but the effect of the Supreme Court’s casual approach to private law on what provincial courts of appeal are doing. I acknowledge that I probably focus more on what the Ontario Court of Appeal does and that court seems to be doing things that disappoint rather than encourage.
The areas that particularly bother me include:
● Punitive damages. The decision of the Supreme Court in Whiten v. Pilot Insurance Co., [2002] 1 S.C.R. 595, 209 D.L.R. (4th) 257, 20 B.L.R. (3d) 165, was bad in terms of the court’s analysis and bad in terms of the result. Punitive damages which, in my opinion, should never be awarded for breach of contract (and probably tort), are now almost routinely awarded with the result that any defendant faces a potentially huge and unknowable risk. The recent decision in Fidler v. Sun Life Assurance Company of Canada, [2006] S.C.R. 3, 271 D.L.R. (4th) 1, may have done something to reduce the (mis)perceived need for punitive damages, but I doubt if it will have much effect.
● Criminal interest. The decision in Transport North American Express Inc. v. New Solutions Financial Corp., [2004] 1 S.C.R. 249, 235 D.L.R. (4th) 385, has largely removed whatever incentive s. 347 of the Criminal Code might have placed on lenders to draft with an eye to the section, since the lender can now almost always—except when they are very bad people—get at least 60% on the loan.
● Restitution. Others, particularly Lionel Smith of McGill, have pointed out the problems the Supreme Court has created for the development of the law of restitution in Canada. I shall just point out the continued belief of the Supreme Court that restitution is an equitable remedy when its entire history shows that it was and should be regarded as a common law remedy. This characterization matters since a court is likely to believe that, as an equitable remedy, a court has some discretion in granting relief when, in fact, the grounds for giving relief and the defences do not include any element of judicial discretion.
I should have added to my list the case of Ron Engineering & Construction (Eastern) Ltd. v. Ontario (Water Resources Commission), [1981] 1 S.C.R. 111, 119 D.L.R. (3d) 267, 13 B.L.R. 72. The reasoning adopted in Ron Engineering (and applied in very many subsequent cases) is a perfect example of a non sequitur. Imposing an obligation on the owner to act in accordance with the terms of the tender documents or bid call and in good faith was a sensible thing to do. To assume that because those obligations exist, the bidder who makes a mistake (and who promptly notifies the owner of it) must bear the consequences of the mistake is both unnecessary and contrary to the understanding of those in the construction industry as disclosed by the CCDC documents and the rules of the various bid depositaries in Canada. Those rules provide that the mistaken bidder may withdraw its bid but may not submit another. For the Supreme Court to have done what it did and for provincial courts of appeal to continue sticking it to bidders (see Toronto Transit Commission v. Gottardo Construction Ltd. (2005), 77 O.R. (3d) 269, 257 D.L.R. (4th) 539 (C.A.)) without ever looking at standard industry practice or what would be fair in the circumstances is an example of the development of private law entirely cut off from reality.
Hi John,
I agree that lower courts have probably been too liberal with the very strictly constrained application the SCC gave to punitive damages in Whiten , but I can't agree that the result was wrong, or that that case should be among those about which David is complaining.
The majority alone cited 82 cases in Whiten , which is quite remarkable both in number alone and because they actually only "applied" one case: Hill v. Scientology.
As to the result, punitive damages have always been a been a legitimate part of the law of civil remedies. The SCC cited their use as early as 1763, and that use has continued both in the U.K. and throughout the Commonwealth. And on the facts of Whiten, I could hardly think of a more appropriate use for the admittedly extraordinary remedy: it sent just the right message both to the individual defendant and to its industry.
Tom,
John Swan's point about Whiten is that it, and the rest of the SCC jurisprudence on punitive damages, do not provide a coherent set of rules, principles, what have you, for practising lawyers to refer to in advising their clients. That's an entirely different question from whether the result in Whiten was right or wrong.
You might look at what the SCC said about when punitive damages are permissible in Performance Industries v Sylan and then decide, for yourself, how consistent those comments are with what was said in Whiten.
David Cheifetz
Tom,
I have tried to show (“Punitive Damages for Breach of Contract: A Remedy in Search of a Justification”, (2003), 29 Queen’s Law Journal 596, and in my text, Section 6.4.2) that Binnie's use of cases from the eighteenth century does not support what he does and, in particular, that his claim that the jury could do nothing but award punitive damages if they wanted to give Mrs Whiten more is simply false. The latter argument is, of course, now at least indirectly supported by Fidler v. Sun Life: aggravated damages can be given for mental distress, etc. Moreover, Binnie’s award of partial indemnity costs belies his argument that only punitive damages could adequately compensate Mrs Whiten. There is also a fundamental misapprehension of both the nature of Mrs Whiten’s claim—Binnie calls it a claim for damages when it is a claim on the policy for the amount promised by the insurer—and the role of concept of the “independently actionable wrong” which a more careful examination of "first party" insurance claims in both Canada and the US would have disclosed. There are additional problems with the punitive aspects of the award; does another plaintiff only get purely compensatory damages, the “extra” award intended to punish being used up in what Mrs Whiten got? In short, the decision is wrong and its justification unconvincing.
Now that the Supreme Court has given leave in Keays v. Honda Inc. it will have a chance to review awards of punitive damages.
(let's try that again)
Another leave to appeal application that the SCC dismissed on March 29/07 was Aristorenas v. Comcare Health Services (31760), an appeal from 2006 CanLII 33850 (O.N C.A.).
The question everybody has to ask is what was it about Aristorenas that meant it did not invoke the court's very fresh comments in Resurfice v Hanke? What does it mean that leave to appeal was denied?
This is part of what the Ontario Court of Appeal wrote in Aristorenas:
The emphasis in para. 78 is mine. Isn't there are least a plausible argument that an increase in risk as equivalent to a material contribution is exactly one of the two Hanke principles for material contribution? Isn't there a plausible argument that Hanke had made the law otherwise? If so, why didn't Hanke apply? I'll quote Hanke's para. 25:
Was it because the SCC concluded the problem was not due to factors outside of her control? What was the evidence on that in Aristorenas? Again, quoting the CA:
Isn't that a factor outside of the plaintiff's control. Now, what conclusions are practitioners to draw from the SCC's refusal to grant leave in Aristorenas, so soon after Hanke. Consider Bohun v. Sennewald et al, 2007 BCSC 269 especially at para. 92-95, decided before the SCC denied leave in Aristorenas.
I'll save some of the suspense:
Is one of the inferences, now, that Bohun was wrong? See, Jackson v. Kelowna General Hospital, 2007 BCCA 129 . Also, Marszalek v. Bishop, 2007 BCSC 324.
I think it’s reasonably clear we’re not going to draw contributions from other practitioners, so I’ll close this discussion under this heading. If I’m wrong about that, so much the better.
Why this discussion should matter to practitioners: errors and omissions implications; that is, your reputation and bank accounts
The Court of Appeal's decision in Aristorenas has now been published in we might call Ontario's 'official' reporting series: Aristorenas v Comcast (2006) 83 O.R. (3d) 282. At the least, it's the series that all Ontario lawyers who've paid their LSUC dues get without having to pay more for the 'privilege'. Some practitioners keep current by attempting to follow the relevant decisions of the courts' of the jurisdictions in which they practice on an almost contemporaneous, as released to online databases, basis. Other practitioners have lives. Many practitioners (reasonably) once and still use head-notes to give them an idea of what's in the case and whether it should be read. (Sloppy practitioners rely on head-notes; that's an issue for another day.)
Let's consider one part of the Aristorenas' headnote in the OR. Bear in mind the likelihood that there are many Ontario (at least) practitioners who will not have heard of Resurfice v Hanke, yet, and who will not hear about until somebody tells them about or they, for whatever reason find it.
I'm going to quote portions of the last paragraph of the portion of the headnote which summarizes the majority reasons. It is accurate as to what is in the reasons. What I leave out doesn't affect the meaning of what I'll quote. "The nature of necrotizing fasciitis poses difficulty in proving whether the negligent delay was causally related to the plaintiff's harm. Assuming in the plaintiff's favour that it was open to the trial judge to adopt the material contribution test for causation and to view the facts in a robust and pragmatic fashion, the fact that the cause of the disease is a mystery did not relieve the plaintiff of the burden of proof. ... Taken as a whole, the record did not support an inference of causation using the robust and pragmatic approach. ... the difficulty in proving causation came from the nature of the illness itself." [my emphasis]
Isn’t that exactly the problem that the SCC mentioned in Resurfice v Hanke?
Let's put aside the seeming conflation of the Athey material contribution test and the Snell explanation of the manner in which the but-for test is to be applied. I've pointed out, elsewhere, that it's difficult to envisage what factor will not satisfy the sufficient relevance portion of the material contribution test if what one does is take a "robust and pragmatic" approach to inferring whether some fact makes more than a "de minimis" contribution to the consequence. However, the conflation becomes moot (you say tomayto, I say tomahto) if one still has to be satisfied that the more than “de minimis” contribution is a probable cause, which is what Aristorenas goes on to say the standard is for material contribution, too. The CA had no choice in that: that’s what Athey said, too; judicial unwillingess to see that notwithstanding.
So, consider these questions.
1. What conclusion the busy practitioner who hasn't read Resurfice would draw from the headnote, assuming (though it's not necessary to do so, that the practitioner bothers to find out that leave to appeal was dismissed)?
2. What conclusion the practitioner who has read Resurfice and Aristorenas, and who knows leave to appeal was dismissed should draw?
3. Assume that an Ontario practitioner is consulted on a medical malpractice claimant in a case which an Aristorenas-type of causation problem - one where "the difficulty in proving causation came from the nature of the illness itself." The practitioner has read Aristorenas, knows that leave to appeal was dismissed, and advises the client there's no "realistic" probability of success, so the action isn't commenced before prescription. Does it matter if the practitioner did or didn't read Resurfice before giving that advice? What difference does it make if he or she didn't? Isn't the practitioner entitled to assume that the SCC took into account its own very recent jurisprudence?
Does it make a difference if there's currently a respectable minority of the legal profession who believe Resurfice doesn't make a significant difference to Canadian tort causation law?
4. Should the practitioner tell the client that no conclusion as to the status of Ontario law can be drawn from the mere fact of the SCC's refusal to grant leave in Aristorenas, that Resurfice is "only" Alberta law? Can a practitioner safely advise the client that the law of Ontario remains as established by Aristorenas and Cottrelle v Gerrard, whatever that law might be?
5. Or, is it lawyer's malpractice/negligence for the Ontario practitioner to ignore the implications of Resurfice and take Aristorenas and Cottrelle literally for what they say.
6. Should the practitioner tell the client that the practitioner will commence the action before prescription; however, to succeed they will have to convince the trial judge (and ultimately the Court of Appeal) to follow the SCC's decision in Resurfice not the Court of Appeal's decisions in Aristorenas and Cottrelle.
Does anybody care to make a division of powers argument? The argument that the Constitution Act, 1867, s. 92(13)(14) does permit the provinces to have different common law answers to the private law question of what is or isn't a tort? Because, somehow, the POGG clause in s. 91 trumps to require a consistent Canadian private law of tort? I didn't think so.
Unless, of course, it’s relevant to the malpractice argument where the lawyer – or the lawyer’s liability insurance - has become the injured person’s last chance of recovery. Then, maybe we'll hear that argument.
7. Is there anybody out there who believes this sort of problem occurs only in the medical context?
8. But, of course, the practitioners’ concerns that one too often can’t make useful sense out of the the SCC’s pronouncements in areas of private law isn’t really the SCC’s concern, any more right? The SCC is no longer necessarily the court of last resort for private law. So, why does it matter that the SCC has said that anything it says on a point of a law is binding on lower courts, even if the comment is obiter. (By the way, that comment, too, was obiter.)