Date: Fri, 19 Dec 2003 15:46:38 -0500

From: Jason Neyers

Subject: Reflections on Ken Cooper-Stephenson's comments

I post this on behalf of Vaughan Black:

I agree with much of what Ken Cooper-Stephenson writes in his recent note. I always thought that the ruling of Lax J. in Kealey v. Berezowski that reasonable mitigation in the case of a failed sterilization required the plaintiff to seek an abortion was an incorrect and surprising holding -- all the more so, perhaps, given that the judge was a woman and a mother. And it's equally wrong, for reasons well stated in recent contributions to this forum, to hold that mitigation requires putting a child up for adoption.

But I don't think we need to invoke distributive justice to arrive at such conclusions. To do so seems an underestimation of the resources available to a conception of corrective justice, and it also seems akin to invocations of distributive justice in some recent House of Lords holdings, where they seem to use to phrase to refer to those things the Supreme Court of Canada would (equally unhelpfully) label as policy.

Ken's comments seem almost to suggest that corrective justice can find no role or explanation for mitigation, since it can only comprehend fully correcting the plaintiff's loss. That strikes me as far to narrow a conception of corrective justice.

Regards to all, vb

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