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Date: Thu, 4 Oct 2007 21:36 From: David Cheifetz Subject: Hill v. Hamilton-Wentworth Regional Police Services Board
Erika, I agree with what you say Hill should be important for. I also agree that, in fairness, causation might not have been an issue for the majority, given the way they decided the rest of the issues. However, whether causation should or shouldn't have been an issue, the SCC majority wrote what they did; knowing what they'd said in Resurfice; and, we have to assume, knowing what's going on down below. The dissent certainly thought it was important enough to take the lower courts to task for the way the issue was dealt with. Even if the none of the SCC are reading anything outside of their "assigned readings", the leave application in Barker v Montfort Hospital was on their agenda. Are we, who practice, supposed to ignore all of that? Say, "oh well, this is just more rumination that will eventually be clarified?". It doesn't mean anything to what the SCC might say if your case gets there? To what the lower courts will now say the law is? Sort of like the award and ruminations in Young v Bella don't matter at all, even though it's an award of general damages in negligence for loss of enjoyment of life that's greater than the cap? I guess it's a good thing Ms. Young didn't trip while leaving the Professor's office, in shock, in tears, and so distraught at the false accusation that she didn't see the brief case he'd carelessly left in the path, and sustain some level of compensable physical injury. Would the cap have applied, then, to her claim for loss of enjoyment of life? Kidding aside, am I to tell the next trial or appellate judge that it wasn't a considered comment, referencing, say, the SCC's discussion in R. v. Henry, 2005 SCC 76 at paras. 53-57, per Binnie J? He was, after all, part of the Hill majority.
Regards,
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