March 14 , 2024

Precedents About Facts

March 11 , 2024

Question of Law or Fact?

February 29 , 2024

Disclosure in Chambers

February 21 , 2024

Not Attending a Hearing

January 31 , 2024

The Suggestions Box

January 2 , 2024

Plain Language for Lawyers

December 15 , 2023

Limitation Periods Have Shrunk

November 30 , 2023

Advocacy's Key

November 28 , 2023

Motions Fritter Away Time and Money

November 27 , 2023

Will Foreclosure History Repeat Itself?

November 21 , 2023

Rules of Court Bind Even the King's Bench

November 2, 2023

Records and Affidavit of Records

November 2 , 2023

Uncommon Law

October 20 , 2023

Expanding Judicial Review Evidence

June 22, 2023

Competition v. Benefits

June 19, 2023

Clogged Courts

June 12, 2023

Preparing Applications in Uncertain Conditions

May 8, 2023

Competence is a Delicate Flower

March 30 , 2023

Urgent! Very Hard to Meet a Limitation Period

March 13 , 2023

Parties to Planning Appeals

March 7 , 2023

Costs in Family Law Litigation

January 30 , 2023

Dodging Settlement Privilege

January 4 , 2023

Lurking Dangers and Errors

January 3 , 2023

Your Real Goals

December 5 , 2022

Contracts for Higher Costs

November 24 , 2022

Scope of Offers to Settle

October 13 , 2022

Checklist for Cross-Examination

September 16 , 2022

Reviewing Latest Changes

August 22 , 2022

First Steps in Problem Solving

July 28 , 2022

Checklist of Powerful Procedural Principles

March 22 , 2022

Repeating a Cross-Examination Question

January 25 , 2022

Enforcing Land Sales Becomes Easier

January 5 , 2022

Proving a Settlement After a Mediation

November 16, 2021

Types of Injunctions

October 1, 2021

Orders After Litigation is Over

August 11, 2021

Discoverability for Limitation Periods

August 5 , 2021

Releases of Claims

June 7 , 2021

Language Used Still Matters

May 17 , 2021

Serving Uncooperative People

April 15 , 2021

Death and After-Life of Contingency Agreements

February 22 , 2021

Legal Analysis

February 2 , 2021

Costs Clarified at Last

January 4 , 2021


December 10, 2020

Traps and Confusion in Service Times

November 24, 2020

Don't Cut Corners

October 2 , 2020

Consent Orders

August 4 , 2020

Electronic Hearings

July 21, 2020

Ceasing to Act

June 29, 2020

Writing Skills

June 29, 2020

Keeping Up With the Law

June 22, 2020

Assets as a Test for Security for Costs

June 19, 2020

What is This Case About?

June 11, 2020

Cross-Examining Child Witnesses

May 20 , 2020

Formal Offers

May 13 , 2020

Vexatious or Self-Represented Litigants

January 7, 2020

G.S.T. and Costs

December 20 , 2019

Electronically Navigating the

October 7 , 2019

Questioning is a Bad Word

July 29 , 2019

Dismissal for Delay

May 7 , 2019

Rule 4.31 Fallacies

March 18 , 2019

More Dangers in Oral Fee Agreements

February 11 , 2019

Weir-Jones Decisions

January 9 , 2019

Discouraging Settlements

November 30, 2018

European Court Helps You Twice?

November 23 , 2018

Courts Overruling Tribunals

November 16 , 2018

New Evidence on Appeal

October 30 , 2018

Schedule C's Role

July 17 , 2018

Loopholes in Enforcing Settlements

May 7 , 2018

Enforcement of Procedure Rules

April 16, 2018

Limping Lawsuits are Often

April 3 , 2018

Court of Appeal Tips for
Summary Decisions

March 19, 2018

Serious Dangers in Chambers

February 13 , 2018

Court Backlog

December 18 , 2017

Lowering the Status of Courts

September 15 , 2017

Access to Court Decisions

July 4 , 2017

Strictissimi Juris

June 14 , 2017

Why Don't Your Clients Settle?

June 5 , 2017

Gap in Rules About Parties

June 5, 2017

Personal Costs Against

April 26, 2017

Clogged Courts

April 11, 2017

Dismissal for Want of

January 6, 2017

Incomplete Disclosure

December 15, 2016


November 23, 2016

Is Contract Interpretation Law?


Côté’s Commentaries

© J.E. Côté 2016-2024


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


The Commentaries are intended to call the attention of lawyers to promising or threatening developments in the law, in civil procedure, in developing their skills, or simply to describe something curious, funny or intriguing.

The Hon. Jean Côté retired from the Court of Appeal of Alberta and would be willing to act as an arbitrator, mediator, or referee under Rules 6.44 and 6.45 of the Alberta Rules of Court.

He may be contacted through Juriliber at:

email: or phone 780-424-5345.