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Date: Thu, 29 Mar 2007 14:14 From: David Cheifetz Subject: The Court Blog - Request For Help
Dear Colleagues: The Court blog - www.thecourt.ca - is a new blog run by Osgoode Hall Law School (York University) students and faculty advisor(s), dealing with the Supreme Court of Canada. Some of you may be aware of it, already - the blog, that is, not the SCC, Osgoode or York. Sometime over the next few days, maybe as early as today, a post will appear substantially as below. It may already have by the time some of you see this. The post will attempt to stimulate - it's a good thing I reread this before I posted it: I first typed "simulate" - a discussion about the adequacy of the Supreme Court of Canada's performance of its role as final arbiter of private law legal questions with the probable potential of affecting a substantial number of Canadians, not just the litigants. My focus will be that of the practitioner. If anyone here feels inclined to join in the discussion, please do. It will certainly help if comparisons are made to practices in other jurisdictions.
Thanks and cheers,
---------------------------------------------------------------------------- Judicial Abdication?
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, to the general principles governing the area, 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. We'll assume, as a given, that the current members of the Supreme Court of Canada would disagree with what Lord Halsbury wrote about precedent in Quinn v. Leathem, [1901] A.C. 495 at 506 (H.L.): "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 might be broadly acceptable, even convenient, in abstract jurisprudential terms, for the court to wait until a controversy is wholly ripe - I have in mind the reputed bouquet of durian, for example - that doesn't do the public any good; nor the practitioners called to give advice; nor the trial judges etc. As such, I'm concerned when all I have from the highest court is "It 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 v Hanke, 2007 SCC 7, para 20.] And then it doesn't mention the cases - really it doesn't: what's there might as well be my shopping list - from which any of the so-called principles emerge. I'm left with this - if those aren't the cases, merely examples, or there are better cases since those were cited only as examples (leaving casuistry aside) - what cases did the court have in mind? 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 come from any case currently part of Canadian jurisprudence. Am I over reacting? Comments?
David Cheifetz
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