Legal Cases Review of TheoryBy: Scott McEachern, Paralegal, legal practitioner coach

When making a cake, a baker avoids taking a dozen eggs, a bag of flour, a bag of sugar, a box of baking soda, a box of baking powder, a carton of milk, a block of butter, and a jar of vanilla, and tossing it all into a mixing bowl and then getting out measuring cups and pulling the unneeded portions of these ingredients back out of the bowl.  Of course, this sounds logical; ingredients should be sorted and measured before being tossed into the mixing bowl; and yet, despite this 'logic' it is common that when legal professionals are making the 'cake' that a legal case is, legal professionals often struggle by getting caught up trying to analyze and understand the theory of a legal case because everything is tossed into the mixing bowl all at once.  SO STOP IT!

While reviewing the legal theory behind a case, and thereby reviewing the cases or statutes that will be applicable in supporting (or debunking) the overall case, the individual issues and elements within the case need mental compartmentalization.  This mental compartmentalization will be impossible if every issue is being reviewed all at once (because that reviewing everything all at once is thereby a failing to compartmentalize).



Presume that Bob works for ABC Inc.  Bob is responsible for, and directed to, shovel snow from the walkway that leads into the building of ABC Inc.  One day, during a snowstorm, while using a snowblower that Bob brought from home after thinking that a snowblower would be quicker than shoveling and thus the decision by Bob to bring a personally owned snowblower into work, Bob is out snowblowing the walkway that leads into the building of ABC Inc.  The use of the snowblower is unbeknownst to any management of ABC Inc.  and is certainly without directions from any of the management, or anyone else, at ABC Inc.  Suddenly, a lady with a child comes up to Bob and asks for directions.  Bob, starts giving directions to the lady while leaving the machine running and, while Bob is failing to pay attention to the machine, the child is injured by the machine.  A lawsuit subsequently arises against ABC Inc.  The lawsuit alleges negligent operation of the snowblower by Bob as an employee of ABC Inc.

Law, review of theory

We could start reviewing the theory of applicable law by attempting to review all the facts and what legal issues arise from those facts all at once; however, such would be confusing and very difficult - and akin to the baker throwing everything into the mixing bowl and then pulling out the unnecessary ingredients.  Alternatively, we could look at the 'ingredients' one-by-one as to what constitutes the required elements for a negligence case.  When doing so, it is often best to avoid being clouded or blinded by overthinking the application of the facts in hand.  To avoid this overthinking, avoid thinking about the actual facts and instead think simply about the general principles of a negligence case.

Duty of Care

Does a business owe a duty of care to pedestrians while pedestrians are upon the lands owned by the business?

Yes, per the Occupier's Liability Act, R.S.O., 1990, c.  O.2, s.  3, and common law including the 'who is my neighbour test' per Donoghue v. Stevenson , [1932] UKHL 100

Does a business owe a duty of care for the actions of employees?

Yes, per vicarious liability principles found in Bazley v. Curry, [1999] 2 S.C.R.  534

Now, continue this manner of compartmentalizing through 'standard of care', 'causation' (usually the 'but for' test), 'foreseeability', 'remoteness', 'public policy issues, if any', and 'damages', until each element of the negligence case (or whatever other cause of action - negligence is merely the example above), at a foundational level.  Once the foundational principles are understood and sourced, then insert the facts of the case-in-hand to ensure that the principles still apply.  Of course, this process is both an art and a science and requires a fundamental understanding of the potentially relevant law; however, even with a fundamental understanding, and perhaps with a highly evolved understanding, trying to analyze every aspect of a legal case without compartmentalization may lead to confusion and assessment errors.

Summary Comment

Analyzing a legal case happens by reviewing each element required in law and doing so one-by-one and then moving onto the next element rather than trying to review everything at once.  Keep it simple!

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