Legalviews Personal

What aspect of previous court precedents should we follow? Looking for the facts in them, not the principles, policy, or law, has big dangers. When the late Gordon Wright was named a Queen’s Counsel, in a special ceremony, his brief address asked the assembled judges one thing: to create and use precedents for law or principles, not facts. From all his experience at the Bar, that was the most important conclusion he had to offer. I still think that he was correct. Here are two examples of why.

Even if the case at bar seems to have no facts differing from a precedent, one cannot be sure that those are all the facts. One cannot know much about the parties, the witnesses, the evidence, the cross-examination, or the argument in the earlier cases. Besides, the facts never are truly identical.

And the real issue is not what the precedent’s facts were; it is what the previous judge thought was relevant. One rarely knows which facts existed but the court found irrelevant or of slight weight. Sometimes the weight of individual facts is the big issue. If a civil damage award for an injury was in issue, what were the plaintiff’s vocation and lifestyle? Was she sedentary, or a ballet dancer?

In cases about compensation, what is the cost of living where the claimant lives? A small town in Newfoundland might cost less than downtown Toronto or a town in the Arctic. Inflation has tended to be fairly high in Canada for most of the last century. It would take a lot of calculation to adjust each earlier precedent for inflation to 2024 prices. Nor do we know whether the judges who gave those awards made any allowance for inflation up to the date of judgment. Some past judges may not have been very familiar with grocery prices and rents. Could inadequate spousal or child support before 1990s have had something to do with unfamiliarity with household expenses?

There is a second way to misuse precedent by juggling facts. One can dismiss precedents (from any level of court) which one does not like. All one has to do is to find one factual difference between the people and events in those past decisions and in the case at bar. One then “distinguishes” the precedents which one dislikes. Even a quite trivial factual difference can be made to sound important, if counsel arguing, or the judge now deciding, is ingenious. For example, decisions before about 1990 usually come from a computer-free environment. Since people today use computers for many things, can one discard all pre-1990 decisions?

The beauty of this trick, is that the person using it is free to choose almost any facts desired, which make a precedent “distinguishable”. (And a litigant obsessed with some particular cause would need no ingenuity; his or her usual preoccupation or obsession would suffice.)

Many of the most basic principles of the law of negligence were laid down by the Supreme Court and the Privy Council in traffic collision suits. Half the time, those involved a streetcar. Today, streetcars scarcely exist. So can one discard those older tort precedents whenever one dislikes them?

There is a variant on this trick of distinguishing precedents. One can invent out of thin air a new “exception” to a settled rule. If the exception has uncommon facts, then the exception seems impregnable: no past precedents have identical facts and so plainly contradict the new home-made “exception”.

– Hon. J.E. Côté

PRECEDENTS ABOUT FACTS