From: David Cheifetz <david.cheifetz@law.ox.ac.uk>
To: obligations@uwo.ca
CC: dcheifetz@gmail.com
Date: 18/10/2017 04:57:23 UTC
Subject: Proof of factual causation in negligence - Ontario Court of Appeal earns a full Pauli
Dear Colleagues,

I was just reminded, not in so many words, that Sacks is essentially per incuriam, if one wants to extend per incuriam to include the ratio of only few months old decision of another panel of the ONCA, albeit in a different case, specifically accepting, approving, and applying the decision of the trial judge in Sacks: Surujdeo v. Melady, 2017 ONCA 41 (CanLII) at [94]. <http://canlii.ca/t/gwz9h.> Three As are enough, right?  Surujedo isn't mentioned in Sacks. It won't help the current panel's "oh heck quotient" that the President of the Surujedo panel, although not the author of the reasons, is the Chief Justice of Ontario.

Best regards,

David Cheifetz




David
From: David Cheifetz [david.cheifetz@law.ox.ac.uk]
Sent: 16 October 2017 09:59
To: obligations@uwo.ca
Subject: Proof of factual causation in negligence - Ontario Court of Appeal earns a full Pauli

Dear Colleagues,

Wolfgang Pauli is reported to have said about the contents of a colleague's paper: Das ist nicht nur nicht richtig; es ist nicht einmal falsch!

Those of you who need to be interested proof of factual causation in Canadian law, or are otherwise morbidly curious with too much time on your hands, should read Sacks v Ross 2017 ONCA 773. http://canlii.ca/t/h6hschttp://canlii.ca/t/h6hsc

A few ODGers are mentioned and explicitly misunderstood.

The case is an appeal from a jury decision. The panel did not agree with the trial judge's instructions to the jury on factual causation nor the form of the relevant questions to the jury. However, the panel did not send the decision back for a new trial. The panel was satisfied that the deficiencies in the form of the jury questions and the judge's explanation of the aw did not affect the outcome: [8]

I agree with the panel that the jury made the correct decision on the facts as outlined by the panel.

My view of the panel's frolic on the law is captured by Pauli's aphorism, albeit I doubt the panel's analysis deserves even that much recognition. I prefer to leave it at that, online.

David Cheifetz 
Oxford