Courthouse Libraries BC has long served as an excellent resource for the judiciary, the legal community and the public. It has always seen as part of its mandate adapting new technologies and media. That continues with the introduction of a series of legal posts included in The Stream blog. I am grateful for the opportunity to participate by offering the opening salvo for the civil litigation blog.
Most of us find daunting the task of keeping up on legal developments and searching for new ideas and approaches (or, sometimes better still, of old wine being served in new bottles and finding a welcome reception). With the acceleration of communication, one cannot rest content with waiting on the latest edition of a law report of judgments delivered months ago. To remain current requires effort. But how can one accomplish that when there is an unceasing avalanche of judgments from the various levels of court in BC, not to mention federal courts, courts from other provinces, the Supreme Court of Canada or, to the most adventuresome, courts from the UK, USA, Australia, New Zealand and elsewhere? Research into specific issues can also require review of legal magazines, law journals, newsletters, surveys, CLE’s and, most recently, legal blogs to stay current. The Stream blog will undoubtedly be a valuable resource and source of inspiration.
The legal profession has always had a curious form of collegiality that involves sharing thoughts and views on the law. Partly that has served to reinforce common understandings of what was well within the bounds of the law for routine cases encountered in practice, and partly it has served to test boundaries of what might “sell” where the success of a claim or defence would only come at (or beyond) the margins of existing law. Ferment of legal thinking mixes with the fomenting of ideas. While we practice in a profession that models the law as having some clarity and certainty, one need only consider what a “triable issue” or “arguable case” is to see that there is often a wide “range of reasonableness” for legal argument. I still chuckle over the costs issues in an appeal I had several years back. The plaintiff company’s claim was struck out as disclosing no reasonable claim. Yet when an application was presented for a special costs award for having pressed a point that was ruled simply not arguable, the court ruled that it was at least arguable whether the claim was arguable. Ponder that.
In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42 the Supreme Court commented just a few weeks ago that “Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed.” The court genuflected at the altar of letting arguable claims and defences proceed. It took pains to make clear that its decisions in Odhavji Estate v. Woodhouse, 2003 SCC 69 and Hunt v. Carey Canada Inc.,  2 S.C.R. 959 to that effect were not affected. But it then applied those same principles to rule that various tobacco companies could not draw in the federal government as complicit and potentially liable for the BC government’s tobacco litigation. One should resist the temptation to say that the hopes of those defendants went up in a puff of smoke. As a more practical concern for lawyers, it is fair to debate whether the effect of the Imperial Tobacco decision will be to increase the number of cases cut off early.
Do lofty decisions from on high matter to those practising in the trenches at the trial level? I think so. Imperial Tobacco will become part of the conversation about triable issues in future cases. Counsel will vie for whether it is “manifestly clear” that the cause or defence in a case is hopeless or whether it should be allowed to develop through to trial. Indeed, to underscore the point, Pearlman, J., in our trial court reversed a Master’s decision in Bank of Montreal v. Jamieson, 2011 BCSC 1141, decided August 22, 2011. He decided that a defence of unconscionability in a mortgage transaction should be allowed to go to trial. No doubt further cases will come along marking out the boundaries of what is “arguable” and what is not. But it seems likely that even where ruled unarguable, judges and practitioners who take a long view of the law will tend to the view that it is often arguable what is “unarguable.”