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Department
Philosophy
Course
Philosophy 2080
Professor
James Hildebrand
Semester
Winter

Description
Week 1: Tort Into Notes GENERAL INTRODUCTION Law: The simplest way to describe law in the Canadian legal system is to call it a set of rules that will, ultimately, be enforced by the state. The state has “power’, I suppose, at the end of the barrel of a gun (until a better weapon comes along). A law is one rule, “the law” is the entire body of state-enforced or legal rules. In Canada, as a society, we acquiesce to the use of force. We delegate enforcement of laws to persons empowered by the state. In a representative democracy, we, as voting members, take a part in determining who has authority and what kind of authority they have. Common Law But, to get back to law and stay away, a little bit, from politics, we are going to look primarily at what is known as the common law. The common law is often described as “judge-made” law. It’s called judge-made, because it is a set of principles that judges, over time, have developed collectively, when they have decided particular cases. The common law entails that body of legal principles that have evolved in the English common law system, over the past 700 or so years. In England, judges were employed by the king to resolve disputes between people, or sometimes between people and the government. People would “plead” their cases before a judge, and the judge, as representative of the king, (or queen), would then settle the dispute. But it is not enough to say to Jones or Smith you win and you lose, a judge would also have to say why. Most of us would expect there to be a reason a decision was made in a certain way. We would also expect the decision not to be arbitrary and unfair. So, we came to expect a “reason” for the decision. That is the first hurdle of seeing a decision as “principled”, or with having a rational basis. We can see that if there is a reason, the reason itself should be rational. Let’s consider an example where most of us would intuitively agree on a reason, that can be formulated as a law. If a person is attacked by another person, it is reasonable to assume the victim would protect himself. So if the attacker was injured by the victim repelling the attack, a case might be brought against the victim for compensation for injury to the attacker. The principle of law that might apply here could be stated simply: when a person is attacked and has reason to believe that he is in danger, he is allowed to take whatever steps are reasonably necessary to repel that attack. If the steps are reasonable, then regardless of the extent of injury to the original attacker, the victim will not be held accountable for any injury he causes. So if Smith attacked Jones, and Jones fought back and injured Smith, and Smith then sued Jones for compensation, Smith would lose the case, based on the principle described above. Obviously there are many kinds of disputes, so there are many different principles. The example I have used seems fairly obvious, but we can appreciate there are likely all kinds of cases where the answers are not so obvious. As the answers become less obvious, it becomes more difficult to predict that different judges will resolve cases using the same principles. You want reliable principles, because you don’t want to think the judge can decide a case differently just because he doesn’t like you. We want the law to treat people pretty much the same way every time, and to treat all people in the same way. We also don’t want different judges to have different rules, because that makes the law arbitrary as well. So, the rules of the legal system become important, to remove any appearance of arbitrary or capricious decision-making by judges. The law is the rule, and we expect it to be fair and constant. We need consistency. How did we get it? I know that Oscar Wilde called consistency the hobgoblin of the small mind, and that was very clever, but when it comes to the law, it is hard to see consistency as anything but a virtue. So, centuries ago, judges talked amongst themselves, and decided that they should follow the decisions that each other had made. Over a bit more time, in the 13th century in fact, judges began recording their decisions in writing and keeping the written account in a central location, so all judges would have access to those decisions. This central reference resource made it easier for judges to decide similar cases using similar principles. A body of principles started to evolve. As the body of principles became “established” over time, the courts developed a system of “case precedent”. The latin term for the system of case precedent is “stare decisis”, meaning “the decision stands”. This system of common law and case precedent means that when a judge decides a case where the facts are similar to a case that has already been decided, that judge must decide the case in the same way. The rule or principle of law from the previous similar case is “binding” on the later judge: he or she must follow that decision. This doesn’t mean the entire content of the decision is binding. When you read some of these cases, you will see how long-winded judges can be. Often they have to explain how they came up with a new principal of law while at the same time remained consistent with the existing previous case law. So all the explaining doesn’t really form a binding part of the decision. For the sake of convenience and clarity, the courts developed categories to indicate what is binding and what is not. The binding part: ratio decedendi The only part of the decision that is “binding”, is the “reason for the decision”. This is referred to by its latin name – the “ratio decedendi”. In my example above where we formulated a legal principle, the ratio would be: when a person is attacked and has reason to believe that he is in danger, he is allowed to take whatever steps are reasonably necessary to repel that attack. If the steps are reasonable, then regardless of the extent of injury to the original attacker, the victim will not be held accountable for any injury he causes. The part that is not binding: obiter dicta Every thing else in the decision is not binding, and is called “obiter dicta”, meaning, “things said – by the way”. It is not always easy to distinguish between the ratio of a decision and obiter dicta, and sometimes it takes years for later courts to decide exactly what the ratio is. So don’t think sorting out cases is only hard work for students. The recorded, binding decisions now form the basis of the body of the common law. This took place in England, and Canada was an English colony, legally pretty much until 1982. Until at least 1949, House of Lords decisions (the highest appeal court in England), were binding in Canada. Even now when those decisions are not binding in Canada, they still provide persuasive arguments that Canadian courts often rely on. There are a number of other Common law jurisdictions in the world that include: the United States of America; the United Kingdom; Australia; and New Zealand. The common law is to be distinguished from “Statute” law. Statutes are written laws that are enacted by the elected legislatures. Only government legislators have the power to “enact” laws. The duty of the courts is to interpret and apply the common law, and to interpret and apply statute law when it is before the court. In addition, a court’s interpretation of a statute will also be binding on future decisions. So, just to clarify, a court’s decision as to how a statute is to be interpreted and applied also forms part of the common law. Just to confuse you a bit more: decisions only bind the courts “below”. There is a hierarchy of courts in Canada, and I will describe how this works in Ontario, to start with. The first place where a court makes a decision is a “trial court”, also referred to a as a court of original jurisdiction. This is where a judge or jury (judge and jury are also referred to as triers of fact), hears the evidence, decides the facts and then applies the law. APPEALS A lot of the case excerpts in the materials are decisions of the various courts of appeal. Case precedent or stare decisis is solely reliant on appeal decisions, so you need to understand a little bit about appeal courts and decisions. Appeal: when a party to a law suit disagrees with the decision of the court and can find a mistake in law in that decision to support an appeal, the next level of court is the Ontario Court of Appeal. I will describe the simplest scenario, because there are different trial and appeal courts depending on the kind of case, we don’t need to know that just yet. You can only appeal on a point of law, because appeal courts don’t hear the evidence of witnesses: it is presumed at law that the trial court “trier of fact” is in the best position to make decisions about the credibility of witnesses. As an aside: this is a central feature of our court or adjudication model: it is presumed that ordinary people, with no special training or expertise, are able to tell when witnesses are telling the truth or lying. A jury of your “peers” has been recognized as the proper way, over polygraph or “lie detectors”, to determine the truth or falsity of evidence. This says a lot about our philosophical commitment to truth-telling, which I would argue is tied to our intuitions about people as fundamentally moral. This concept in itself invites discussion, I suggest you read the “Mountain People” by Colin Turnbull if you want to shake up your world view a little. So, the next level above the trial court, and I will call the trial court the Ontario Superior Court of Justice, is the Ontario Court of Appeal. Decisions made at the Ontario Court of Appeal are binding on the trial courts in Ontario only. The next level of appeal above the Ontario Court of Appeal is the Supreme Court of Canada. Decisions made at the Supreme Court of Canada bind the trial courts of every province, and the appeal courts of every province. Courts of appeal are made up of: 5 judges in provincial courts of appeal, and 9 judges in the Supreme Court of Canada. Actually, there are many more judges in the Ontario Court of Appeal than just five, but a maximum of 5 can sit on one case, and as few as 3 can sit in some cases. There are only 9 judges in total in the Supreme Court of Canada, and every case does not necessarily require that they all sit in judgment. In very important cases, all 9 judges will sit. There must always be an odd number of judges in an appeal court, to ensure that a majority decision will determine the outcome of the case. Even though the appellate courts perform an important function when they generate legal principles, the main function of the court is to resolve the dispute before it. Courts of appeal generally follow their own decisions in later cases considering similar facts, but they are not “bound” to do so, and occasionally do reverse themselves. A reversal in a later case would not affect the previous cases that had already been decided, even though the state of the law may change. Majority: this is the decision of the court that determines the outcome of the case, and obviously must be the opinion of a majority of judges sitting on the appeal. The ratio of the majority decision is binding on lower courts. Concurring: sometimes judges agree or “concur” with the result, but add their own reasons because they feel they have some important reasons to contribute, or that they would come to the same conclusion for different reasons. Again, it is the majority decision that binds, but there may be persuasive arguments contained in a concurring opinion that may help shape the law in later cases that consider this decision. Dissent: Very often judges disagree with each other. The dissenting opinion usually disagrees with both the reasons and the outcome of the majority decision. * Remember this* the dissent is often found after the majority in the book/ course pack. The dissent does not determine the outcome of the case. Q: Why bother a) having a dissent or a concurring opinion, and b) including these in the reading materials? a) Judges have a serious job to do: they must consider all that is before them and render a decision, whether or not everyone agrees with them today. The process is one of reasoning, and that reasoning ought to be as accessible as possible. This allows the full development of the common law as all ideas are considered and accepted or rejected, and often reconsidered. Judges are doing their duty, and it is ensured that the “debate” that produces common law principles is as robust as it can be. b) You will understand the philosophy of law by understanding the content of the rigorous debate that produces law. The discussion in many cases is itself the philosophy of law, and this is especially true in the constitutional section of the course. In this course we will be discussing 4 main areas of law: 1) Tort law 2) Contract law 3) Criminal law 4) Constitutional law Tort and contract law are characterized as “private” law. Tort law: Now that we know what law is: a set of rules that are going to be enforced by the state, we need to define tort law. Tort law is the private law of “actionable wrongs”. The word “actionable” means something recognized at law as something you can sue for. In the legal context, an action is a traditional word meaning law suit. A law suit can be called an action, a person injured may have a “cause of action”, the title of the case is called the “style of cause”. It tells us who the parties to the dispute are, and if it’s a public or private case. When we discuss an action we mean a civil action, or “private’ law suit. It is important to distinguish between public and private law to understand what is meant by tort law. Private law is the body of law that deals typically with the resolving of disputes between private individuals. In Canada, a private law suit means the person injured must put the case forward, or “bring the action”. A private action is funded by the parties to the dispute, the litigants. A person in a private law suit or action must have a personal stake in the suit in order to be involved. You can’t sue your neighbor’s contractor for injury to your neighbor, that is your neighbor’s private action to bring. Public law is the body of law where we say the state has an interest. Criminal law is a good example of public law. A crime is an act that is considered to be an offence against the state as well as the particular victim. Even if the victim does not want to pursue the case, the state will intervene and prosecute the accused person. We often hear people saying they do not want to “press charges”. But in Canada, this is not the victim’s decision, this is the decision of the representative of the state, usually a crown attorney. It may be that a crown attorney decides not to prosecute a case because of a reluctant principle witness, but the decision to prosecute is solely the decision of the state’s representative. The criminal case is not a case between victim and criminal. The victim is a key witness, but the victim does not pursue the person accused of a crime. The state prosecutes and the state pays for the investigation and prosecution. This distinction between public and private is important to understanding what tort law is. If tort law is the law of privately actionable wrongs, we can contrast this with criminal law quite easily. There can be concurrent liability in both Tort and Criminal law. Just because a person has been charged criminally doesn’t mean they can’t also be sued civilly. And just because a person has been sued doesn’t mean he or she can’t be charged criminally. The public and the private are separate, but related. OJ Simpson case: an example O.J. Simpson, famous football and movie star, was charged with the murder of two people, Nicole Brown Simpson and Ronald Goldman. O.J. was acquitted at trial, some say, found “not guilty”, although I prefer to call it, “not found guilty”. Following his acquittal, he was sued civilly for causing the wrongful death of the same persons he was alleged to have murdered. Two years after his acquittal of on the murder charges, O.J. Simpson was found civilly liable for wrongfully causing the deaths of Nicole Brown Simpson and Ron Goldman. Some people wondered how he could be found not guilty, and then two years later ostensibly found guilty of the same crime. To say this a bit more accurately, one court process apparently said he “didn’t do it”, the other said he did. Remember, in a criminal case, the state has the onus of proof. The standard of proof imposed on the state in order to convict the accused is that it has to prove its case “beyond a reasonable doubt”. In the O.J. Simpson murder trial, the state failed to prove its case beyond a reasonable doubt. In other words, nothing was proven. So O.J. was not found guilty. He was also not found innocent. In a civil case, in this case an intentional tort case, the plaintiff (that’s the person “doing the suing”) has the onus of proof, but need only prove its case on the standard called the “balance of probabilities”. So, technically speaking, if it is 51% more likely O.J. caused the death of Ms. Brown Simpson and Mr. Goldman, the plaintiff will win the case. Most people thought he “did it”, but there was always that doubt. No criminal conviction. If the evidence showed he probably did it, a civil action for wrongful death could find him liable. From this example we see the difference in standard of proof between civil and criminal cases, and
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