The Thrill Is Gone: Sardonicism ‘R Us, Part Un

This post contains some parting, case-specific, comments on Canadian common law judicial reasoning for interested Canadian lawyers (or those interested for other reasons) to ponder, related to a few Canadian reasons for judgment delivered late in 2016.

It’s not my job or real concern any more, unless it’s at a friend’s request or for other good reason. Whether it ought to remain any part of my concern is something I don’t plan to ponder very much in 2017. If I do, though, it’ll be only after I’ve had much Macallan 25, or the equivalent, at somebody else’s expense and as I need to even consider going down that rabbit hole again.

If you need musical accompaniment, start here on YouTube, leaving your settings on autoplay:

You won’t be disappointed.

In the music.


  1. Benhaim v. St‑Germain, 2016 SCC 48


If Ms. Clements was entitled to a new trial (see Clements v. Clements, [2012] 2 SCR 181, 2012 SCC 32 (CanLII),, why wasn’t Ms St.-Germain? Or, At the least, OUGHT we not to say that this much was true about both cases:

[53] We cannot be certain what the trial judge would have concluded had he [or she] not made the errors I earlier described. All that can be said is that the parties did not receive a trial based on correct legal principles. In my view, the appropriate remedy in these circumstances is an order for a new trial.

Putting this another way: while numbers alone aren’t conclusive of anything, and may mean nothing, what did the 4 members of the SCC majority see that 7 other judges did not (the 3 dissenters in the SCC; the 3 Que CA judges; and the Que SC judge) that made them so certain that they knew, on the balance of probability (at the least) what the trial judge would have concluded, not just ought to have concluded, had she not made the errors that the SCC majority asserted she did.

Did the SCC majority really mean to assert that the only correct verdict, on the evidence as

(a) disclosed in the record, or

(b) based on the evidence that ought to have been considered just in case there was some “fact” that was considered by the courts below that shouldn’t have been because it wasn’t in evidence; or

(c) based on the evidence that ought to have been considered just in case there was some fact that was in evidence and ought to have been considered but wasn’t;

was the dismissal of the action? You’d never know it from either the majority or minority reasons (unless you’ve read the Que CA majority reasons and the leave/appeal briefs filed in the Supreme Court) but there was an issue of evidence which the successful (at the SCC and at trial, but but not in the Que CA) appellant physicians certainty thought was significant. That issue might even be part of the reason that leave to appeal was granted. We’ll never know.

If nothing else you might consider this from the “rule of law” perspective (while the Choir & Chorus chant that passage from Quinn v Leathem in the background) if you’ve had your fill of goose & gander over the holiday season.


  1. Wise v Abbott Laboratories, Limited, 2016 ONSC 7275 (CanLII),

Or, once again how to make something from nothing in Ontario. Who said alchemy is dead (no Dire Straits jokes, please) in Ontari-ari-oh?

Is it really the current state of Canadian common law that a trial judge who allows expert evidence on a particular issue may then ignore all the expert evidence and decide the issue contrary to what the expert evidence is?

Or, ask the question this way: was para. 9 of Resurfice Corp. v. Hanke, [2007] 1 SCR 333, 2007 SCC 7 really meant to assert what the plain English (and seemingly the plainer French) assert?

[9] The plaintiff submits that the trial judge discounted the evidence of expert witnesses called by the plaintiff on the design of gas delivery systems and the behaviour of workers. It is true that the trial judge placed no reliance on these witnesses. However, a trial judge is not obliged to consider the opinions of expert witnesses if he can arrive at the necessary conclusions on issues of fact and responsibility without doing so: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at pp. 23-24.

[9] Le demandeur soutient que le juge de première instance a rejeté le témoignage de ses experts au sujet de la conception du système d’alimentation en gaz et du comportement des travailleurs. Il est vrai que le juge de première instance n’a pas tenu compte des opinions de ces témoins. Toutefois, un juge de première instance n’est pas obligé de tenir compte de l’opinion de témoins experts s’il n’en a pas besoin pour tirer les conclusions nécessaires eu égard aux questions de fait et de responsabilité : R. c. Mohan, 1994 CanLII 80 (CSC), [1994] 2 R.C.S. 9, p. 23 et 24.

Or does the French text necessarily mean what the English means? Your call. Somebody with a better command than I have (you’re legion) of the nuances of French “legalese” might know whether the second meaning of sentence of the French version is necessarily equivalent to the meaning of the second sentence of the English version.

I suspect it does, but doesn’t that depend on what the SCC meant by “conclusions on fact and responsibility”? Or are we left to conclude that, since the content of the English meaning is ambiguous, the most we ought to say is that the French text is equivalently ambiguous.

Because Mohan, and the cases upon which Mohan relies on, don’t assert that proposition. That’s a “really really really – lawyers’ triplets make the proposition clearer, right? – don’t”, not a “perhaps, possible, don’t”. Look at Mohan and follow the authorities backwards. It’s very easy in today’s linked world. You don’t have to leave your comfortable chair.

And, of course, because, taken literally, the proposition in para. 9 is exactly what the trial judge in Clements did; that is, he had to have ignored the evidence of the expert witness in order to find that the negligent conduct of the defendant was a factual cause. The BCCA recognized that possibility, explicitly.

[35] In their submissions to this Court, both parties spent some time discussing the details of Mr. MacInnis’s written report and oral testimony. For her part, Mrs. Clements submitted that the trial judge did not misapprehend that evidence, and committed no palpable and overriding error in assessing it.

[36] The trial judge was clearly not obliged to accept Mr. MacInnis’s evidence. It is axiomatic that a trial judge is entitled to accept all, none, or part of a witness’s evidence. That a witness has been qualified as an expert does not change this Fox v. Danis, 2006 BCCA 324 (CanLII), 228 B.C.A.C. 164 at para. 26. [Note: BC cases tend to cite BC cases even if there are SCC cases. Even where the subsequent BC summary isn’t necessarily what the earlier BC case said. It’s a BC thing. DC**]

[37] Having reviewed the trial record, my initial impression is that the trial judge may well have misapprehended aspects of Mr. MacInnis’s evidence. However, I need not reach a definitive conclusion in this regard because, as I will now discuss, the facts the judge did find—which Mrs. Clements supports—do not permit the material-contribution test to be used to find Mr. Clements liable.

In deciding to allow Ms. Clements a second kick at the financial can, the SCC majority either chose to ignore this point or overlooked it.

** If you care, this is the text of Fox v Danis at para. 26:

[26] The trial judge was not bound to either accept the doctor’s evidence in its entirety, including his conclusion, or dismiss it completely; she was entitled to “accept parts of the testimony, reject other parts of it and make appropriate findings”: R. v. S.S. (2004), 50 M.V.R. (4th) 26, 2004 BCCA 79 (CanLII) at para. 18.

(Emphasis in bold added by me: DC)

Since my last references in this part are to BCCA decisions, it’s worth concluding this part with the BCCA’s conclusion as to why Ms. Clements ought not to have a new trial:

[64] What does this mean for the present case? It means that once the trial judge determined that Mrs. Clements had failed to establish that the motorcycle would not have capsized but for Mr. Clements’s negligence, he should have found that causation had not been proven. … I do not consider it either unfair or unjust, or … “just plain wrong” not to fix Mr. Clements with liability when Mrs. Clements has been unable to show factually that his negligence was a cause of her damages.

Transposing this to Benhaim, what was it about the facts of that case that made it “just plain wrong” to allow Ms. St-Germain a second kick at the can containing the physicians’ liability insurance where Ms. Clements was allowed a second kick at the can containing her husband’s motor vehicle liability insurance?

Do recall that, in Clements, on the first time-around, the plaintiff’s position was that, because of the defendants’ negligence, it was factually impossible for the plaintiff to establish factual causation on the balance of probabilities.

This next point isn’t supposed to be relevant but what would you glean from the fact that, given a Mulligan, ultimately, Ms. Clements’ lawyers were able to find an expert (I understand a European expert) who provided a strong enough opinion that the case settled without a second trial. Just sayin’.


  1. Kweon v. Roy, 2016 BCSC 2305 (CanLII),; Waldman v Waldman, 2016 ONSC 7910 (CanLII),; and Iannetti v Poulain, 2016 NSCA 93 (CanLII), <>,


Is there a rule of law in Canadian common law to the effect that, (a) where the Supreme Court of Canada rules that Canadian common law on a point is X, then (b) the judges of the common law provinces and territories of Canada are obligated to follow that law (and generally seem to be trying to) but (c) the trial judges of British Columbia have the power to repeatedly state that British Columbia common law is something different than X (and maybe ignore X but it’s sometimes difficult to tell what the trial judges meant other than – this (my) conclusory summary of the necessary minimal content of what they meant: “I find factual causation established on the balance of probabilities applying authentic modern Canadian Gibberish, or British Columbia law as I understand it so go away Cheifetz and now Mr. Justice Russell Brown of the SCC”**and (e) that the British Columbia Court of Appeal is entitled to let this go on without saying anything because, well, this is BC which, as everybody knows (they do, don’t they) also stands for “Beyond Canada”, maybe even “Boo Canada” or, for those of you still living anywhere near Victoria “Bother Canada”??

Just askin’.

** the “applying authentic modern Canadian Gibberish” is my interpolation borrowed, of course, from Mel Brook’s Blazing Saddles “authentic frontier gibberish” scene. Modern Canadian common law judges do not, of course, speak or write in authentic modern Canadian Gibberish.


  1. Waldman v Waldman, 2016 ONSC 7910 (CanLII),


What does “robust and pragmatic” tell you, about either the manner of the analysis, or the content of the analysis, the motion judge used to form the conclusion stated in this passage: “Taking a ‘robust and pragmatic approach’, I therefore fail to see any basis on which … could be liable for work he did ….”. Alternatively, what does “robust and pragmatic” add to anything the motion judge outlined in the paragraphs preceding that statement that deal with the conclusion of “no basis for liability”.

-30- (almost)




  1. “Robust and pragmatic” is hearkening back to the Lord Mansfield principle (correct?) that the trier of fact must consider all evidence against the universe of evidence it was possible for them to adduce.

    I *think* (and I am making my best efforts to be charitable here) that the motions judge is saying that if there are additional facts–from the details of the retainer, subsequent conduct, etc.–that suggest reasons as to why Mr. Slan would have ongoing duties and obligations, that they were not presented by the plaintiff. But of course the facts were not in dispute (or “not really” which I have more problems with using than the repetition of ‘robust and pragmatic’) so heck, I dunno.

  2. >>“Robust and pragmatic” is hearkening back to the Lord Mansfield principle (correct?) that the trier of fact must consider all evidence against the universe of evidence it was possible for them to adduce.<<

    That has to be what Sopinka J meant in Snell, if we’re to assume he had something specific in mind when he used the phrase.

    >> “I dunno”<<

    Exactly. That's exactly the position the reasons aren't supposed to leave us in, and we're supposed to be informed readers, right? ("I'm really on this case, Your Honour. I don't exactly know what it means but if it means anything it means something that helps my client's case.")

    A good development is that one can now find eminent jurists who have said, in their capacity as jurists, that the this phrase (associated with the commonsense cant) should be understood to mean that the judge was unable to adequately express what he or she wanted to say. When understood that way, the number of judges resorting to it should decrease. (Of course, merely substituting "applying logic" doesn't eliminate the problem, but at least it tells us what the judge thought the judge was doing.

    The ONCA's most useful attempt – bear in mind the effect of my use of "most" on the meaning of "useful" in this context – to explain what "robust and pragmatic" adds to the process is the majority reasons in Aristorenas v. Comcare Health Services, 2006 CanLII 33850 (ON CA). It’s a well-meant effort. The question that anyone attempting to apply that explanation to the meaning of the process has is what does the explanation actually mean, in practice.

    “I dunno” may be as good an answer as any, in practice. (A better one, in theory, is that the explanation provides the initial steps in the continent of an algorithm which will allow one to calculate the number of angels that can dance on the head of a pin situated within the jurisdictional borders of the Ontario courts. However, one should keep in mind Yogi Berra’s dictum about the difference between theory and practice.)

    What Aristorenas v. Comcare Health Services, makes clear is that the phrase is NOT, must NOT be understood to be mean additional evidence, additional content. It is all, and only, about the process of weighing the value of that content to determine whether the person with the standard of proof has met the standard.

    Remarkably, though, it seems to me that too often one can’t tell whether judges using the “robust and pragmatic” phrase, or any version of it or even hinting that they used it by citing, say, Snell are using it as a placeholder for additional evidence they’ve chosen not to mention or merely the procedure(s) (whatever it is) they are choosing to use to assess the evidence.

    Me? I just remark* that it’s interesting how often judges break one of the principles underlying reality. (The one that says one can’t create something from nothing; or that Billy Preston summarized in “nothing from nothing leaves nothing”). But then law doesn’t always have to be reality, does it? That’s why we have legal fiction.

    *This becomes far easier to do when one is officially retired from practice. Or is out of the jurisdiction.

Leave a Reply

(Your email address will not be published or distributed)