In the Friday Spirit: On Judges and Canadian (Legal) English

There’s a tempest brewing in some parts of the Canadian legal universe on what it means to say that there’s a relationship between condition X and harm Y such that the law will say that X is a cause of Y, and what the legal tests are for determining the existence of that relationship.

My note below deals with aspects of that controversy. As some of you likely know, a chief justice of leading Canadian court recently penned a sentence which contains a phrase that is likely to outlive (for the wrong reasons) much of the rest of the court’s jurisprudence. That phrase is “Much judicial and academic ink has been spilled”. So, this being Friday, I’ll spill the electronic equivalent: pixels. 

On the meaning of “clarify” – defined by the Canadian Oxford Dictionary (self-described as “the foremost authority on current Canadian English” – a p. 263: “1 … make or become clearer … 2 make transparent … purify…”

Rizzi v. Macros, 2007 ONCA 350 (Ontario C.A.)

[18] The respondents concede that they did not form an intention to appeal within the prescribed time period. They explain the approximately fifteen months of delay on the basis that, prior to Resurface [sic], conflicting appellate authority on causation made success on appeal very uncertain.

[19] I accept the explanation for the delay. Although Resurface [sic] did not change the law of causation, it did clarify the law. The history of Resurface demonstrates that there was confusion in this area following Athey v. Leonati – the trial judge applied the “but for” test but the Alberta Court of Appeal applied the “material contribution” test. If there were no confusion about the law of causation, it seems to me that the two levels of court would not have differed on which test applied. This court’s decision in Barker reinforces my view. (emphasis added:DC)

I didn’t know that it’s now Ontario jurisprudence that two wrongs make a right. There’s explicit judicial authority that they don’t. Even Ontario Court of Appeal authority. Really. In Gu v. Tai Foong International Ltd., [2003] O.J. No. 264 at para. 35 (C.A.), the Court Appeal wrote:

“[v]iewed from one perspective, there is an element of “two wrongs do not make a right” in what transpired late in the trial. Arguably, Gu should not have been permitted to testify contrary to his pleadings … and the Lam Group should not have been permitted to argue defences it had not pleaded.”

There is now good Ontario law that recidivism is irrelevant. The number of times an error is committed is irrelevant. In R. v. J.R.R., [1996] O.J. No. 3468 at para. 64 (Gen. Div.) we find: “I have decided that the community cannot take another chance with Mr. J.R.R. Six wrongs do not make a right.” A little digging will turn up more usages of the adage by noted Ontario jurists such as Farley J. in National Trust Co. v. Furbacher [1995] O.J. No. 3566 at para. 7 and Lerner J. in Jones, Gable & Co. v. Scott, [1972] O.J. No. 940 at para 10 (H.C.J.); even as far back as 1908 which is the first reported usage I could find in Ontario case law by Falconbridge C.J.K.B in Loughead v. Collingwood Shipbuilding Co., [1908] O.J. No. 101, 16 O.L.R. 64 (Div. Ct.):

” [i]t would probably be held, in view of cases such as … [that] the fact of such insurance could not be taken into consideration by the jury. But, even if two wrongs could make a right … there would still be a substantial miscarriage of justice on the facts of the case.”

Remarkably, that was for the benefit of an insurer. Times have, clearly, changed.

Getting back to my point, which relates to the use of “clarify”, in Resurfice [Resurfice v Hanke, 2007 SCC 7] McLachlin CJ didn’t seem to think that there was all that much confusion “in this area” – meaning the area of factual causation. She summarized the area in 8 brief paragraphs (paras. 20-28) introduced by a sentence which I wonder if the Court now regrets including: “Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. 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.”

It’s a rather unusual use of “clarify” where what the 2nd case says the first case said is literally the exact opposite of the [ahem] plain meaning of the English words used in the first case. On that note, some of us will recall this.

Through The Looking Glass – Lewis Carroll – Chapter VI

There’s glory for you!’

`I don’t know what you mean by “glory,”‘ Alice said.

Humpty Dumpty smiled contemptuously. `Of course you don’t — till I tell you. I meant “there’s a nice knock-down argument for you!”‘

`But “glory” doesn’t mean “a nice knock-down argument,”‘ Alice objected.

`When _I_ use a word,’ Humpty Dumpty said in rather a scornful tone, `it means just what I choose it to mean — neither more nor less.’

`The question is,’ said Alice, `whether you CAN make words mean so many different things.’

`The question is,’ said Humpty Dumpty, `which is to be master – – that’s all.’

I’d go on and make a snarky comment or three, but then I already have.

Cheers