2011 and Common Sense

(Having allowed Simon F. the honour of the first 2011 post, not the least in recognition of all that he and the rest of the Slaw administration do to keep this place going. I trust that I am not presumptuous in thanking all of you, again.)

This isn’t quite a new year’s resolution but it will do.

Let’s hope that common sense (whatever it means) prevails this year.

Let’s hope that public (political, judicial, and other) and private reference to decisions supported by, or required by, common sense aren’t calls to the seeming authority of common sense because the conclusion (the inference) the proponent has drawn, or wishes others to draw, is one “in the teeth of the evidence” and the proponent doesn’t have any other valid justification. (See Fairchild v. Glenhaven, 2002 UKHL 22 at para. 70: “My Lords, however robust or pragmatic the tribunal may be, it cannot draw inferences of fact in the teeth of the undisputed medical evidence.”)

As Roget’s Thesaurus points out – an online reference to an older, hence public domain, version is
http://www.bartleby.com/110/704.html – a conclusion made “in the teeth of the evidence” is one made with difficulty, against the grain.

If the conclusion is one based on common sense, then it shouldn’t be one that was difficult to make, one made against the grain of the evidence.

Another way to put it – musically that is – is “Nothin’ from nothin’ leaves nothin’” (Billy Preston, Bruce Fisher, 1974). (Catch the hair. It was another era (g)). The British Columbia Court of Appeal seems to agree.

On the other hand, perhaps that belief is based on the mistaken assumption that law is logical, at least in this instance. As some of you know – and others likely recall because I’ve used it before – a House of Lords judge once wrote that “such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.” (Quinn v Leathem [1901] A.C. 495 at 506 (H.L.)). Who am I, a mere Ontario barrister and solicitor with only an LLB, not even a JD, not even another graduate or even undergraduate degree – what can I say, the law school needed a goalie for its hockey team and I was bored – to gainsay such an eminent authority?

On yet the other hand, one might wonder whether there are some appellate judges who have different views on what can be validly made out of nothing; for example B.S.A. Investors Ltd. v. DSB, 2007 BCCA 94 at 43 (“I would add that there is an important difference between drawing an inference as to causation from circumstantial evidence, which is often done, and drawing an inference as to causation from no relevant evidence at all, which may be done only in the rare circumstances set out above.”) and the basis upon which the Ontario Court of Appeal concluded what it did in Waterloo Region District School Board v. Truax Engineering Ltd., 2010 ONCA 838, but I’ll leave that case for another day beyond this. While it’s good to still be right, some 33 years later, I still wish they’d get it right for the right reasons. Someone will, eventually, have to pay some lawyers some money that shouldn’t have had to be paid to get the Ontario Court of Appeal to get it right. If I’m lucky enough, that somebody could be me. (Of course, I won’t get to charge the client for all the research I would have otherwise have had to do, but them’s the breaks, right?P

Next, would those of you who need to know such things please make a note that, as of January 3 (and certainly after January 3) my office email changes. It becomes dcheifetz [at sign] szplaw.com. Yes, that means I have changed firms and physical location. (As it happens, 10 floors down in the same building. That made the move somewhat physically easier, though I still had to go down to go up : to the main floor to change elevator banks. ) 

Finally, and in any event, Happy New Year to all.

David Cheifetz