Date: Wed, 3 Jul 2002 12:48:02 -0300 (ADT)

From: Jennifer K Bankier

Subject: More on Fairchild on McGhee

On Fri, 28 Jun 2002, Allan Beever wrote:

... It cannot be right to deal with this sort of uncertainty by finding automatically for either party.

Isn't what the burden of proof always does, i.e. resolve uncertainty?

My understanding is that courts are supposed to decide issues one way or another if the evidence permits them to do so.

The burden of proof comes into the picture when the evidential scales are evenly balanced between the parties and tells the court which way to resolve the issue if the evidence does not permit the court to make up its mind one way or another, i.e. if the court is uncertain about how to resolve the issue.

The policy issue is which way to resolve the uncertainty with respect to different issues ... this varies from issue to issue and sometimes from jurisdiction to jurisdiction.

(In the U.S. with respect to intentional torts the burden rules are relatively simple in most situations ... the plaintiff has the burden with respect to the elements of the intentional tort. The defendant has the burden with respect to defences like consent, etc. In Canada, the situation is more complex, at least with respect to direct injury, because we are still bedevilled by onus rules derived from the old writs of trespass and case ... and there is disagreement among torts professors about whether we should get rid of the old trespass onus shift rule within the torts derived from trespass, and follow the U.S. and Britain in placing the onus on the plaintiff with respect to the main tort. The SCC seems to be determinedly sticking with the old rule.)

The decision about where to place the onus in situations of uncertainty is a policy issue about which reasonable people and reasonable courts may differ depending on their policy predispositions.

I haven't had a chance yet to read the case that is triggering the current round of discussions. I may add some comments to this debate when I have read it.

But the fact that onus/uncertainty resolving rules are determined by policy in favour of one party or the other with respect to particular issues is true as a general proposition. The issue here is whether we agree with the policies lying behind the judgments of the various Law Lords ... and any large group of torts professors, by definition, is likely to contain a substantial amount of disagreement! :)

JKB

<<<< Previous Message  ~  Index  ~  Next Message >>>>>