Monday, January 5, 2009

More on pragmatic and functional legal issue

What I have so far cited involves the standard of review from administrative decisions.

But consider this from the Ontario Court of Appeal:

"...[4] The appellants do not appeal the trial judge’s findings of negligent treatment or his damages award. They appeal on a single issue – the trial judge’s conclusion on causation...

[22] On the causation issue, the trial judge applied the “robust and pragmatic approach” to fact finding in relation to causation set out in Snell v. Farrell, 1990 CanLII 70 (S.C.C.), [1990] 2 S.C.R. 311 at 330, and concluded that “the plaintiff has established, on a balance of probabilities, that the defendants’ negligence materially contributed to the injury.”..."

The cited case is at:

"...These references speak of the shifting of the secondary or evidential burden of proof or the burden of adducing evidence. I find it preferable to explain the process without using the term secondary or evidential burden. It is not strictly accurate to speak of the burden shifting to the defendant when what is meant is that evidence adduced by the plaintiff may result in an inference being drawn adverse to the defendant. Whether an inference is or is not drawn is a matter of weighing evidence. The defendant runs the risk of an adverse inference in the absence of evidence to the contrary. This is sometimes referred to as imposing on the defendant a provisional or tactical burden. See Cross, op. cit., at p. 129. In my opinion, this is not a true burden of proof, and use of an additional label to describe what is an ordinary step in the fact-finding process is unwarranted.

The legal or ultimate burden remains with the plaintiff, but in the absence of evidence to the contrary adduced by the defendant, an inference of causation may be drawn although positive or scientific proof of causation has not been adduced. If some evidence to the contrary is adduced by the defendant, the trial judge is entitled to take account of Lord Mansfield's famous precept. This is, I believe, what Lord Bridge had in mind in Wilsher when he referred to a "robust and pragmatic approach to the ... facts" (p. 569)...."

emphasis mine


My comment: Here again we see in the ordinary law of evidence in civil cases the difference between a label and a functional account of what the court does in weighing evidence and drawing and rebutting inferences. But is that not, in fact, the very thing that happened in the waylaying of the old formulaic hearsay rule and replacing that rule with a functional approach that looks to purpose. This still shy of Judge Posner's concern with consequences but it is a step along the way.

Itzik Basman

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