Date: Tue, 27 May 2008 15:21

From: David Cheifetz

Subject: The refreshing SCC

Jason,

reasonably already qualifies foreseeable which makes it more than possible.

But, you'll recall, reasonably doesn't mean more than possible when it comes to assessing damages. It means a possibility which is "a real and substantial possibility and not mere speculation", whatever that means.

The distinction between possible and probable is part of the rationale the SCC, HL and HCA have given for distinguishing between decisions relating to past events (even past hypothetical events) and future events, including damages assessment, and an intrinsic part of the structure that distinguishes between the damage inquiry and the damages inquiry. (Well, until the Fairchild, Resurfice, exceptions, but let's not go there.)

Athey para 27-29

27 Hypothetical events (such as how the plaintiff’s life would have proceeded without the tortious injury) or future events need not be proven on a balance of probabilities. Instead, they are simply given weight according to their relative likelihood: Mallett v. McMonagle, [1970] A.C. 166 (H.L.); Malec v. J. C. Hutton Proprietary Ltd. (1990), 169 C.L.R. 638 (Aust. H.C.); Janiak v. Ippolito, 1985 CanLII 62 (S.C.C.), [1985] 1 S.C.R. 146. For example, if there is a 30 percent chance that the plaintiff’s injuries will worsen, then the damage award may be increased by 30 percent of the anticipated extra damages to reflect that risk. A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation: Schrump v. Koot (1977), 18 O.R. (2d) 337 (C.A.); Graham v. Rourke 1990 CanLII 2596 (ON C.A.), (1990), 74 D.L.R. (4th) 1 (Ont. C.A.).

28 By contrast, past events must be proven, and once proven they are treated as certainties. In a negligence action, the court must declare whether the defendant was negligent, and that conclusion cannot be couched in terms of probabilities. Likewise, the negligent conduct either was or was not a cause of the injury. The court must decide, on the available evidence, whether the thing alleged has been proven; if it has, it is accepted as a certainty: Mallett v. McMonagle, supra; Malec v. J. C. Hutton Proprietary Ltd., supra, Cooper-Stephenson, supra, at pp. 67-81.

29 This point was expressed by Lord Diplock in Mallett v. McMonagle, supra, at p. 176: ....

Did the SCC intend to junk that distinction (too)?

Regards,
David

--------------------------------------------------------------------------------
From: Jason Neyers 
Sent: May 27, 2008 9:54 AM
To: Lewis KLAR
Subject: ODG: the refreshing SCC

Lewis:

Why does reasonably foreseeable need a qualifier, reasonably already qualifies foreseeable which makes it more than possible. It can't be "more probable than not" since that is a higher than the contract standard which is said to be higher than the tort one (Heron II). I doubt any formulation will convey the idea better. A mathematical formulation would be of little help.

I have always thought that the right way to think about it was to ask what are the 4 or 5 reasons why someone would say what you did was negligent. If what happened was 1 of those four or five things then it is not too remote. I think that explains Mustapha.

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