A Canadian Judge Did Say This

I came across this opening paragraph in a judgment of the British Columbia Court of Appeal in Kripps v. Touche Ross & Co, 1991 CanLII 2261.

On December 4, 1990 this appeal was heard by three judges of this court. Judgment was reserved. In the course of drafting reasons for judgment it was discovered that two judgments of this court relied on by the appellant had been the subject of adverse comment in the judgment of the House of Lords in Rush & Tompkins Ltd. v. Greater London Council and another, [1988] 3 All E.R. 737. It was decided the appeal should be re-argued before five judges in order that, if it thought it right to do so, the court could reverse or vary its earlier decisions.

The House of Lords in Rush & Tompkins had said this:

In Canada there are conflicting decisions. In Schetky v. Cochrane and the Union Funding Co. [1918] 1 W.W.R. 821 the Court of Appeal in British Columbia ordered oral discovery to be given to a defendant of negotiations between the plaintiff and another defendant in the action but held that on the trial there would be no higher right to use the statements or admissions than that which a party to the negotiations would have who sought to introduce them in evidence. This decision was followed in British Columbia in Derco Industries Ltd, v. A. R. Grimwood Ltd., Insurance Corporation of British Columbia and P.L.C. Construction Ltd. [1985] 2 W.W.R. 137 in which Lambert J.A. said, at p. 142;

to the extent that there is a rule that prevents the production of documents that were prepared in the course of negotiations leading to a concluded settlement, it is my opinion that the rule does not extend to the prevention of the production of those documents at the instance of a litigant who was not a party to the settlement and whose claim for production comes under the rule in the Peruvian Guano case.” (Compagnie Financière et Commerciale du Pacifique v. Peruvian Guano Co. (1882) 11 Q.B.D. 35)

Schetky v. Cochrane and the Union Funding Co. was not followed by the Court of Appeal of Ontario in I. Waxman & Sons Ltd, v. Texaco Canada Ltd., [1968] 2 O.R. 452. The Court of Appeal in a short judgment upheld a long reasoned judgment by Fraser J. who expressed the following opinion [1968] 1 D.R. 642, 656:

I am of opinion that in this jurisdiction a party to a correspondence within the ‘without prejudice’ privilege is, generally speaking, protected from being required to disclose it on discovery or at trial in proceedings by or against the third party.

Is this what a Canadian court should do? Should it do so more often and, perhaps, at the urging of a Canadian Court? The Court of Appeal did not refer to its previous judgments or to the judgment of the Ontario Court of Appeal.


  1. On the other hand there are comments like this

    [1] There is arguable merit to the appellants’ claim that the result and reasoning in Karakas et al. v. General Motors of Canada Ltd. (2004), 74 O.R. (3d) 273, aff’d, [2005] O.J. No. 24621 (C.A.) is at odds with the principles enunciated in Heredi v. Fensom, [2004] 2 S.C.R. 741. We are not, however, asked to overrule Karakas. See Guarantee Company of North America v. Mercedes-Benz Canada Inc., 2006 CanLII 19485 (ON C.A.).

    In the interests of disclosure, I’m the lawyer who lost Karakas because I wasn’t able to convince an earlier, different, panel of the ONCA that GM’s argument, which the panel bought, was inconsistent with the SCC decision.

    That aside, the integrity of the legal system is depends on both process and content. The job of all judges is to get the law right. The responsibility to do so is even greater if the court is an appellate court. Some us here know that the US appellate courts, state and federal, have a procedure by which judges of the court/circuit that heard the appeal can ask that the appeal be reheard en banc. We don’t have that system. That makes it even more important that the appellate courts function as their own watchers. The problem with bad law is that it’s viral. Decisions are precedents for other decisions. A flawed decision is capable of polluting the process.

    It was, once upon a time, yet another legal fiction that appellate courts of last resort were infallible. Apparent inconsistencies in their reasons were exactly that: only apparent. This is from a 1932 Scottish judgment Assessor v. Collie, 1932 SC 304 at 311-12,

    The House of Lords has a perfect legal mind. Learned Lords may come or go, but the House of Lords never makes a mistake. That the House of Lords should make a mistake is as unthinkable as that Colonel Bogey should be bunkered twice and take 8 to the hole. Occasionally, to some of us two decisions of the House of Lords may seem inconsistent. But that is only a seeming. It is our frail vision that is at fault.

    quoted recently in a paper written by a judge of what was the House of Lords. Note the title of the piece: Lord Hope of Craighead, “‘Decision Overrruled” – Facing Up to Judicial Fallibility” (2003), 14 K.C.L.J. 121 at 122.

    The SCC wrote, recently, albeit in a different context, “Bad law, fixed up on a case-by-case basis by the courts, does not accord with the role and responsibility of Parliament to enact constitutional laws for the people of Canada.” (R.v. Ferguson, 2008 SCC 6 at para. 73). The same view should apply to the courts, and in particular the appellate courts, in the role as guardians of the law.

  2. Some of us remember Collie for the great line: ‘It disna’ matter if the ball hit yer neb, if the umpire says yer oot, yer oot’. Quoted by the learned Lands Tribunal – Mr Michael R Curry FRICS FSVA IRRV ACI.Arb in Harron v. Commissioner for Valuation at Belfast – 14th February 1996.

  3. Yup. Lord Hope quoted the line, as have I, elsewhere.
    I can’t do the accent, though. Lord Hope wrote, after the “oot” line:

    Fallibility is, of course, an escapable part of the human condition. … In sport, errors of that kind are irretrievable. When the game is over you get no second chance. But that is all very well for sport – which is only a game, after all. When the whistle blows, it really is all over. The law demands something different. If mistakes are made by judges when they say what the law is, their mistakes must be corrected.

    Appellate infallibility is another of those fairy tales that are no longer in vogue.

  4. Most judges seem to believe the words of Sir George Jessel, “I may be wrong, but I have no doubts.”

  5. Simon,

    Wrongheaded “no doubts” do nobody any good … except the lawyers who earn more fees when the case goes to the next level. So, I suppose the litigation branch of the profession should be happy, in one sense, if you’re right about that aphorism.

    Angela can probably show you a host of examples proving your point in the contracts area.

    I can do the same in other areas. I’m going to, because it’s egregious and because it involves an area that the Ont Court of Appeal seemed to have cleaned up for trial judges just a few months ago.

    And because this way I get to set out what maybe I won’t then need to turn into a case comment, because we all know that people who matter read Slaw. (Note appropriate genuflection and doffing of cap.)

    Diatribe starts

    One that irks me, as often as not, is the continued refusal of some judges in this province to understand that statute, common law, and principle, in cases where a defendant’s liability is proportional (several, only) not solidary (i.e. joint), requires them, in order to get make the correct decision – the correct decision is important, right? – to determine the percentage of fault of all of the concurrent wrongdoers, which means ALL of them, including ALL who are not parties to the action.

    The case I’m about to kvetch about is Milne v. St. Joseph’s Health Centre, 2009 CanLII 51196 (ON S.C.J)

    It had taken the Court of Appeal some 8 plus years to finally make that exquisitely clear just a few months ago (case is Taylor v Canada Health 2009 ONCA 487, 95 O.R. (3d) 561 – in doing so, it had to clean up the mess created by an obiter comment some 8 years before. I got to publish at least 400 pages of complaints about the consequences of that obiter, before its apparent demise, so I suppose I have some reason to be thankful.

    Now, in Milne, a trial judge – seemingly forget that a finding of fault is not the same as a finding of liability: a person who is not sued cannot be held liable – has recreated the problem by claiming the Taylor as distinguishable. As such, she refused to apportion fault against a person not a party, on the basis – here I have to quote – that because the person was not a party and so had no ability to defend?

    How can this Court apportion liability against a non party who has had no opportunity to defend himself as in the Martin case?

    Martin is the ONCA case that Taylor said was “overtaken” by subsequent ONCA decisions and, in any event, wrong.

    We have to assume the trial judge’s use of “liability” was a slip of the fingers. The judge was not apportioning liability against a non-party. The judge was determining the non-party concurrent wrongdoers percentage of fault in order to determine the percentage of a person who was a defendant and who could be held liable to the plaintiff but only for that defendant’s degree of fault.

    Why did the trial judge think it mattered that the no-longer-a-party alleged wrongdoer was not able to defend the action? She/he/it wasn’t going to be held liable. Maybe it might in some way. But that couldn’t have been relevant to the issues in the action.

    In addition, and remarkably (at least to me), the trial judge justify his/her conclusion that apportionment of fault was not permitted by stating that the defendant’s counsel had signed the minutes of settlement that let the (by trial) non-party out of action. So what? The trial judge didn’t suggest that, somehow, the agreement contained a clause that allowed the plaintiff to continue against the remaining defendant(s) for more than their own shares – their own shares would include a share based on vicarious liability, but that wasn’t an issue in the case.

    Of course the defence counsel signed off on the agreement that got the non-party out of the action, completely, and got the injured person (plaintiff) some payment (we have to assume) from the person (or the insurer of the person) let out of the action. It was a so-called “Perringer” agreement.

    The effect of Milne, if it is followed – the better view is that it is wrong – is that the Perringer agreements are going to have to provide, as specifically, as possible, that in the continued action by the plaintiff against the non-settling defendant(s)(wrongdoers), the court must determine the percentage of fault of each of the persons found to be at fault. The court shall not refuse to do so on the basis that person is not a party.

    Hmmm … sounds (to me) to be exactly what the ONCA said was the law in Taylor. So, now, Perringer agreements in Ontario have to have an agreement that says that Ontario trial judges shall be bound by ONCA decisions.

    Of course, the trial judge also attempted to cover off the possibility of being wrong in principle on the apportionment issue by stating that, in any event, there was not enough evidence to permit a valid decision as to whether the non-party was at fault.

    One explanation for what happened, of course, is that the trial judge realized that finding fault against the no-longer-a-party alleged wrongdoer would decrease the plaintiffs’ recovery, maybe significantly enough to make a difference -in a case where the judge had decided that the plaintiff should recover a substantial amount – and this subconsciously affected the trial judge’s analysis of principle. There’s support for this in what actually happened. The injury was catastrophic. As it was, the trial judge held that the non-settling defendant was “only” (my word, my quotation marks) 33% at fault – meaning that that defendant would pay only 33% of the agreed on damages. The plaintiff had argued for 50%. If fault had been apportioned to the non-party, the 33% might well have been significantly less.

    End diatribe.

  6. As an illustration of David’s point, though not in Contracts, there is Nisha Technologies Inc. v. Canada (Attorney General), 2009 CanLII 45314, 97 O.R. (3d) 151 at 153, where Smith J. says:

    [9] In the Allen v. Platinum Rouge Valley Inc. case, the court held that individual limited partners lacked standing to bring an action for injuries suffered by the limited partnership, where their injuries were derivative of the injury suffered by the limited partnership. The Allen case is distinguishable from the case before me because a limited partnership is a distinct separate legal entity from the individual partners, similar to the situation of a corporation, which is a distinct legal entity from the individual shareholders of the corporation, which was the situation in Foss v. Harbottle, supra. The Allen decision did not involve a contractual joint venture, which is not a distinct legal entity.

    The statement that a limited partnership is a distinct separate legal entity from the individual partners, similar to the situation of a corporation would catch most solicitors who deal with partnerships by considerable surprise.

  7. So would the fact that a judge would say (or thought it had to be said), in a recent case, that A’s delegation of A’s contractual duty to perform to C – C didn’t perform properly, B sued – did not break the chain of causation. The reasons don’t suggest that the judge was doing nothing more than dealing with a ludicrous defence by A.

    Anyway, some of us (still) have the ability to remember a tv show called “kids say the darndest things”. Unfortunately, sometimes, so do some judges. Say, that is. I’m not going to comment on what some judges (still) have the ability to remember. It’s only sometimes the fault of the lawyers.

    It’s well known in some circles that, before most reasons got posted on some website, somewhere, silly reasons – and sometimes reasons that maybe weren’t silly but that the paper report chief editor(s) didn’t like – vanished into unreported obscurity. Some got reported years later.

    I think I’ll stop, now, while both feet are still on the ground rather than in my mouth.

  8. Adding to what I said in the first comment, in the first paragraph, a later ONCA case on the same issue shows the ONCA striving to correct itself, eventually.

    The case is Longley v. General Motors of Canada Limited, 2009 ONCA 627

    [19] General Motors seeks to show that this case does not differ from Karakas by pointing to the affidavit evidence of one of its “senior product investigators”. In his affidavit, the investigator stated that the tailgate “is central to the conveyance of any vehicle equipped with one”. In distinguishing Karakas, the motion judge obviously rejected that evidence. He had good reason to do so. The wiring at issue in Karakas was integral to the conveyance function because the motor vehicle could not be driven without proper wiring. The tailgate at issue in this appeal was not integral to the conveyance function of Ms. Longley’s truck because the truck could have been, and indeed was, driven with the defective latch mechanism.

    [20] This distinction is sufficient to dispose of this appeal. However, I agree with the following observation made by a panel of this court in the later case of Guarantee Company of North America v. Mercedes Benz Canada Inc. reflex, (2006), 86 O.R. (3d) 479, at para. 1:

    There is arguable merit to the appellants’ claim that the result and reasoning in Karakas v. General Motors of Canada Limited is at odds with the principles enunciated in Heredi v. Fensom. [Citations omitted.]

    [21] Karakas seems to add a gloss to Heredi in those “somewhat rare” cases where the motor vehicle is not being operated on the highway. The gloss is that the damages claim may still be “occasioned by a motor vehicle” if those damages were caused by a component of the motor vehicle integral to its conveyance function. Whether that gloss is warranted ought to be considered in a case in which it must be confronted directly.

    Of course, all of this makes me wonder what I might have done differently in the appeal. Oh well, there’s always Antony’s line to Brutus, in the eulogy for Caesar – the emphasis is mine –

    Men at some time are masters of their fates:
    The fault, dear Brutus, is not in our stars,
    But in ourselves, that we are underlings

    I guess that day wasn’t one of those times.