Posts Tagged ‘British Columbia Court of Appeal’

When One Lawyer Makes Us All Look Bad

December 5, 2012

Embarrassing.

Shameful.

Greedy.

Pull out your Roget’s Thesaurus and take your pick of a panoply of adjectives to describe this story by the CBC’s Kathy Tomlinson:  B.C. woman may lose home over huge lawyer bill:

A B.C. woman stands to lose her home to her lawyer, who is moving to foreclose on her to pay his six-figure bill.

“My friends and family say this can’t be happening. There’s got to be a mistake,” Dale Fotsch said.

Fotsch got into the predicament after being sued by her former common-law husband, even though she won the case and the court ordered him to pay her costs.

“I won, but I lost,” Fotsch said. “I defended myself and now I’m losing my place.”

Fotsch, 54, lives near Pemberton with her disabled son and earns a modest income. Her only asset is her home and the 12 hectares of land it sits on.

“I’ve worked two jobs, and I have for the last 25 years,” Fotsch said. “When I was hit with this, it was just like a bomb went off in my life.”

The divorce proceedings were brought by Ms. Fotsch’s common law ex-husband Leigh Wilson who claimed a share of her home (presumably as a matrimonial home) following their break-up. Nine years later, the case resolved, but not in any way she expected. (more…)

Cut-and-Paste Justice

November 20, 2012

I previously blogged about Cojocaru (Guardian Ad Litem) v. British Columbia Women’s Hospital and Health Center2011 BCCA 192,  where the British Columbia Court of Appeal ordered a new trial and overturned a five million dollar judgment awarded to an infant plaintiff who suffered brain damage during his birth at the BC Women’s Hospital and Health Care Center. The Supreme Court of Canada subsequently granted leave to appeal and the Court’s decision is under reserve following oral arguments on November 13, 2012.

The issues before the Court in Cojocaru are:

If a trial judge adopts the submissions of only one party into his or her reasons for judgment, is the presumption of judicial integrity and impartiality so fundamentally displaced so as to render the trial unfair (or a nullity) in the absence of cogent evidence of bias?

Whether the trial judge committed a palpable and overriding error by failing to conduct an independent assessment of the evidence and in failing to consider the respondents’ causation defence.

Is this an isolated incident or is there a judicial trend toward “cut-and-paste justice”? (more…)

Supreme Court of Canada: “But For” Is The Default Test For Causation in Negligence

June 29, 2012

In a previous post entitled: “Clear as Mud: The Supreme Court of Canada to Clarify the Law of Causation“, I noted the Supreme Court of Canada’s latest opportunity to clarify the law of causation following the BC Court of Appeal decision in Clements v. Clements. The analytical confusion stemmed from the conflicting application of “but-for” test and “material contribution” test by various trial and appellate courts, following the Supreme Court of Canada’s decisions in Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, [2010] 1 S.C.R. 132 and Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333.

David Cheifetz over at slaw.ca valiantly attempted to sort out this mess before the Supreme Court of Canada released its decision today. Frankly, my head hurts after reading his post.

Anywho, here’s a link to the Supreme Court of Canada’s decision released this morning: Clements v. Clements, 2012 SCC 32 (S.C.C.).

The majority opinion written by the Chief Justice (Deschamps, Fish, Abella, Cromwell, Moldaver and Karakatsanis JJ concurring; LeBel and Rothstein JJ. dissenting), is summarized as follows:

[46] The foregoing discussion leads me to the following conclusions as to the present state of the law in Canada:

(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.

(2) Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.

In other words: The “but for” test is the default test for causation in negligence, “but for” [pun intended] multiple tort-feasors, when, exceptionally, the “material contribution” test otherwise applies.

Viroforce Systems Inc. v. R&D Capital Inc.: Is the “strong cause” test discretionary?

June 23, 2011

In Viroforce Systems Inc. v. R&D Capital Inc., 2011 BCCA 260 (CanLII), the British Columbia Court of Appeal has expressly endorsed Justice Laskin’s analytical approach to consent-based jurisdiction in Momentus.ca Corp. v. Canadian American Assn. of Professional Baseball Ltd., 2010 ONCA 722 (CanLII),2010 ONCA 722 at paras. 35 to 39, 325 D.L.R. (4th) 685, leave to appeal granted [2010] S.C.C.A. No. 473. (more…)

$5M judgment vacated, new trial ordered due to B.C. judge’s plagiarism

April 14, 2011

“About the most originality that any writer can hope to achieve honestly is to steal with good judgment.” Josh Billings (1815-1885) American humorist and lecturer.

In what is described as a “most troubling appeal”,  the British Columbia Court of Appeal in Cojocaru (Guardian Ad Litem) v. British Columbia Women’s Hospital and Health Center, 2011 BCCA 192,  has ordered a new trial and overturned a multi-million dollar judgment awarded to an infant plaintiff who suffered brain damage during his birth at the BC Women’s Hospital and Health Care Center. (more…)


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