New Insurance case out of SCC

Quite a compelling analysis from the SCC on the meaning of "accident" within the meaning of an insurance policy.  It is potentially important for other areas of law, such as the standard of care.

One can only wonder how Binnie J. ever managed to develop such powers of legal analysis without a "J.D."

Comments

[David Cheifetz]

Russ,

Binnie J graduated in the era before age appropriate passing?

Still, you do know that he is entitled to get himself a JD, assuming he pays the the U of T the proper amount. Hmmmm.... I wonder if the school makes an exception for the notable. Are there relevant degrees of notability?

Anyway, if Binne J did he could be BA, LLB, JD, LLM, (with a few honorary degrees here and there) and still be law's after-dinner speaker equivalent of Dennis Hull. Or, maybe, out of caution, I should say that Hull is Justice Binnie's.

My first impression is that it's taken one large club out of the plaintiffs bar's bag(s). [That's as far as I'll go with golf jokes.] The case isn't an exclusion case; however, the discussion certainly could be seen as a direction to the lower courts to stop looking for ways to ignore exclusions.

I liked para [39], provided its sauce for goose and gander. If it's not open to the insurance industry to pretend it has the philological power of Humpty Dumpty, then neither should the judges. I expect we'll see a number of judges remind us that a rose by any other name "is" still a rose and doesn't smell any different; is a rose is a rose is a rose; etc.

Sort of ironic that the "next" version of a causation case a BCCA decision, and gets reversed with a comment that echoes the "why" of another case I won't mention. The comment, here, is in para. 43: "[43] At the same time, a claimant who can establish that death was unexpected does not thereby, without more, establish a valid accident. Otherwise, every bad happening, natural or unnatural, whether caused by disease in the ordinary course of events or otherwise, would be classified as an accident."

I'd have been happier not to see this bit in [49] "on a common sense approach to" but at least the context helps provide some content to that usage.

Para [57] introduces a new flavour of metaphysics into Canadian jurisprudential jargon. We know have, "law office metaphysics" in addition to "abstract metaphysics". Dare we presume that "law office metaphysics" are likely to be different from, and more concrete, than "abstract metaphysics. Sounds like casuistry to me.

We're going to see these two sentences, from [57] quoted with some regularity. "The courts do not favour the self-serving isolation of a particular element in a chain of events that should be considered in its entirety. Such law office metaphysics would make nonsense of the reasonable expectation of the parties at the time the policy was entered into."

In fact, I can see a portion of that admonition appearing sooner ragther than later, in another context, say something like this: "The courts do not favour the self-serving isolation of a particular element in a chain of events that should be considered in its entirety. Such law office metaphysics would make nonsense of the .... [insert relevant subject-object]."

Hmmm ... how about the contents of some debates that we don't need to catalogue, at least at this juncture. Yeah, that's what I think, too.

David

[Graham Purse]

David, I must say the "law office metaphysics" quote by Binnie in Dunsmuir is one of my favourites.

Russ, in my opinion, at first blush, an accident has never happened: all effects have causes, however unlikely or unforeseeable.

I particularly like this definition from Wikipedia: "It [an accident] implies a generally negative probabilistic outcome which may have been avoided or prevented had circumstances leading up to the accident been recognized, and acted upon, prior to its occurrence."

You have opened a nasty philosophical can of worms with this post (I am thinking B

[Brock]

On a tandem, Graham's comments remind me of my three favourite "Binnie" lines from Dunsmuir:

"Litigants understandably hesitate to go to court to seek redress for a perceived administrative injustice if their lawyers cannot predict with confidence even what standard of review will be applied;"

"A small business denied a licence or a professional person who wants to challenge a disciplinary action should be able to seek judicial review without betting the store or house on the outcome."

"Reasonableness is a big tent..."

Brock

[David Cheifetz]

Graham,

Ooops. Thanks for the reminder and correction.

I completely missed that Binnie J introduced "law office metaphysics" in Dunsmuir [at para. 122] when referring to the state of judicial review - "Judicial review is an idea that has lately become unduly burdened with law office metaphysics. We are concerned with substance not nomenclature."

Brock - "common sense" is even a bigger tent than reasonableness. One problem, though, for both, is that there's likely to be disagreement on where the stakes and tent pole should go, not to mention the material for the tent; that is, assuming there's even agreement on what "stakes" and "tent pole" and "material" mean. But, then, a discussion of the latter issues could be seen as [adjective] metaphysics.

David

[business management university]

I am not familiar the insurance, but will research about it, then to get the connection of law.

[renaissance costume]

That was a careful analysis. I had a good time reading it. Thanks much for posting the link. :)