Forgetting the Audience: Resurfice Corp v Hanke
As a civil practitioner, it’s my job not only to advise clients about the legality (actionability) of past conduct, but also about the likely legality (actionability, risk of actions etc.) of proposed conduct which might create new issues. That means I need to know what reported cases the highest court in the land thinks are relevant to the area in issue, to the general principles governing the area, to be able to see what’s there that might be relevant. Maybe there are similar facts. Or maybe there’s something from which I can deduce / infer / extrapolate a rule that might apply. I’m prepared to assume, from what the Supreme Court has said in a recent case, that the current members of the SCC would disagree with what Lord Halsbury wrote about precedent in in Quinn v Leathem,  AC 495 at 506 (HL):
Now, before discussing the case of Allen v. Flood and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.
So, while it it might be broadly acceptable, even convenient, in abstract jurisprudential terms, for the SCC to wait until a controversy is “wholly” ripe, that doesn’t do the public any good; nor the practitioners called to give advice; nor the trial judges, nor even the provincial appellate courts.
I’m concerned, then, when all I have from the highest court is the bald statement that: “[i]t is neither necessary nor helpful to catalogue the various debates. It suffices at this juncture to simply assert the general principles that emerge from the cases” (Resurfice Corp. v Hanke, 2007 SCC 7, para 20), without any clear identification of the cases meant and from which the so-called principles are said to emerge. I’m left with this – if those aren’t the cases, merely examples, or if there are better cases since those were cited only as examples (leaving casuistry aside) – what cases did the SCC have in mind? Why do we have to guess?
It’s my view that I, and other members of the profession at the front line, can’t do our jobs properly if that’s what we get from our highest courts. I’ll leave for another day any question of whether the principles cited in Hanke comport with those from any case currently part of Canadian jurisprudence.
Am I over-reacting? Comments?