The More Things Change / Plus Ça Change

[Warning: The following missive contains attempts at humour. Reader discretion is advised.]

In the early part of the last century, one could find judges railing about “scholastic theories” of this and that. What this and that was doesn’t matter. “Scholastic” was not used as a compliment. In the mid part and last part of the century, the denigration of choice became “abstract metaphysical theories”.

The SCC has now introduced a new species of metaphysics applicable to, at least, insurance policy interpretation, and eventually , we should assume, contract interpretation generally …. DRUM ROLL PLEASE:

“law office metaphysics”.

 See Co‑operators Life Insurance Co. v. Gibbens, 2009 SCC 59 at para [57]: “Such law office metaphysics would make nonsense of the reasonable expectation of the parties at the time the policy was entered into.”

[Correction: I’ve been reminded that Binnie J introduced “law office metaphysics” in Dunsmuir v. New Brunswick, 2008 SCC 9]

Justice Binnie, who delivered the reasons on behalf of a unanimous, full, court, didn’t specify what part of the law office it had in mid, or whether this is a generic archetype. I mean, do we have Bay Street large law office metaphysics, and small law office metaphysics, and academic law office metaphysics, and in-house law office metaphysics, etc., or perhaps even law office water-cooler metaphysics, for those offices that still have water-coolers?

I suppose the saving grace is that Justice Binnie didn’t see fit to quote from Henry The Sixth, Part 2, Act 4, scene 2, at about line 75.

Kidding aside, the case needs to be read by all in the profession whose job requires them to provide useful advice about the interpretation of contracts. It’ll probably result in much usefully spilled ink – real and pixellated – academic, judicial and otherwise, and produce debates which I expect will get catalogued. There will be a discussion of the case on the University of Alberta Law Faculty blog – here – and other law related blogs.


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