Date: Wed, 18 Apr 2007 16:22

From: David Cheifetz

Subject: Canadian Factual Causation Law

Russ,

It does and I'm sure it'll get worse before it gets better. The question is how much worse.

It'll give somebody in the BCCA a chance to trot out Haag v Marshall and point out how closely Hanke hews to it.

If the appellate judges don't want their words to be understood for what their words literally mean, they'll either have to be more careful about their choice of words, or tell us what their choices of words mean and don't mean.

Anyway, in my never-ending search for perfect cute title for a future article, I've now included, in my list of candidates: "Dear Mr. Bumble: Law, Logic and Reason, or Why Holmes, Halsbury, Hoffman and Intel Were Right."

Still, I suppose the practitioners' portion of the profession (which I inhabit: if the SCC wants to feed me, why bite its hand?) shouldn't mind the SCC's unwillingness to make litigation expense avoidance a serious concern. Marlow wrote in Doctor Faustus: “Was this the face that launched a thousand ships? / And burnt the topless towers of Ilium?” Were Marlowe writing in a law review, today, about too many reasons for judgment, he'd write: “Is this the pen that launched a thousand slips / And fed the bottomless bowers of Bay?” On the other hand, I'm sure I'm not dreaming when I recall any number of recent speeches by senior members of the judiciary bemoaning the cost of litigation. Perhaps I missed the fact that the point of these speeches was that the only significant reason for the increased expense was excessive lawyers' fees.

Clear as crystal? Yup. Crack'd. Leaded and laced with other impurities, too, to the extent that one shouldn't drink from it. But, then, I've said that before, haven't I? And described the crystal as no bigger than a thimble. It ain't gettin' bigger.

David

-----Original Message-----
From: Russell Brown
Sent: April 18, 2007 10:07 AM
To: David Cheifetz
Subject: Re: ODG: Canadian Factual Causation Law

Dear David,

It gets curiouser and curiouser, no? Given our initial conclusions about Hanke, the Grenall decision is notable for taking McLachlin CJ in Hanke at her word: risk augmentation = factual causation. I think the BC Court of Appeal is going to have to bone up on causation for next winter's assizes.

I'm not holding my breath for a "clarification" from the SCC. I suspect that, while the Court thinks that some of its earlier causation decisions were not as clear as they could be (particularly Walker), it thinks that Hanke is clear as crystal. Were litigation expense avoidance a serious concern, it would be continually raining "clarifications" in Canada.

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