On the Art of Judging

And a bit of substantive law, too, for those with too much time on their hands this very cold (in Toronto) December day.

Different courts in different jurisdictions sometimes arrive at different answers to the same question. Sometimes, though, they arrive at the same answer by different routes. Those interested in the art of judging, even in the development of the area of jurisprudence involved, may sometimes find it useful to compare the cases. (I’ll mention them eventually.)

In 1988, the Ontario Law Reform Commission published its Report On Contribution Among Wrongdoers And Contributory Negligence (Toronto: Ministry of the Attorney General, 1988). The Report, not surprisingly, deals with the topics covered in the title. Dealing with contribution, the Report states, at p. 157:

A more difficult question is whether D2 should remain liable to pay contribution well beyond the period of his enforceable liability to P. The issue here is whether priority should be given to D2’s protection from claims arising, in the broad sense, out of the loss inflicted upon P, or to D1’s interest in ensuring that his ability to recover contribution is not prejudiced by the conduct of P after P’s cause of action against D1 and D2 has arisen. As we have seen in this chapter, powerful arguments can be made on both sides of this issue, and no result may be completely satisfactory.

D2, in the quotation, refers to the wrongdoer from whom contribution is claimed. D1 is the wrongdoer claiming contribution. P is the injured party, whose injury was caused by the separate wrongful conduct of both D1 and D2 (or separate wrongful conduct for which there is vicariously liability).

The OLRC went through the case law in detail. It acknowledged there were valid arguments on both sides of the issue but preferred the conclusion that the expiration of the limitation period for P’s hypothetical damages action against D2 – hypothetical because P did not sue D2 in time or did not sue D1 at all – did not provide D2 a defence to D1’s contribution claim. Put in other words, it is not a pre-condition for contribution that D2 still be potentially liable to P for the damages P claims from D1 when D1 commences the contribution claim against D2.

This issue – the effect of the expiration of the limitation period governing the hypothetical damages action by P against D2 on D1’s right to contribution from D2 – was recently considered and decided by both the Ontario Court of Appeal and the British Columbia Court of Appeal. Both courts arrived at the same conclusion: the expiration of that limitation period does not provide a defence. However, the courts’ reasons are entirely different. There is no relevant overlap in the analyses. All that overlaps are the essential facts. Neither of the provinces have legislation that specifically deals with the issue. Ontario once had, but the provision in the statute was repealed without any obvious replacement. (Trust me on that one. This is one subject for which I know whereof I speak.)

 The cases are: Truax Engineering Ltd., 2010 ONCA 838 (released Dec. 9, 2010) and The Owners, Strata Plan LMS 1751 v. Scott Management Ltd., 2010 BCCA 192 (released Apr. 21, 2010.) There’s also an earlier decision arriving at the same result: Mackenzie v. Vance(1997), 74 D.L.R. (3d) 383, 2 C.C.L.T. 63, 19 N.S.R. (2d) 381 (N.S.C.A.) using the same approach as in Strata Plan. Some might think it’s worth wondering about the significant difference between the approach taken by the Ontario Court of Appeal and that taken by the British Columbia and Nova Scotia Courts of Appeal, wondering whether the ONCA’s explanation for what it did holds any water, and wondering why the ONCA took that approach.

Some might wonder how one makes something from nothing, even if one has found a philosopher’s stone. Even that takes lead to produce gold. 

Me? The astute and informed reader can probably make a good guess as to my views on the merits of the ONCA’s approach. Full disclosure requires me to disclose that, in 1977 or 1978 I had something published, in a very reputable law journal, about the problem the courts dealt with. I wrote more about it in something published in 1981. It’s likely still the Canadian “bible” on the area, if only because nobody else has ever written anything to compete. I made the “mistake” of returning to the area in something published in 2007. Odds are the ONCA was aware of at least one or two of those somethings. Discretion over valour precludes me saying more (at least now). Given that, it’s a good thing that the ONCA decision was the better answer to the difficult question.

The losing side likely doesn’t agree, of course, but that’s litigation for you.