Doctor's PI Program

#79

 From the Desk of:

 Mark Studin DC, FASBE (C), DAAPM, DAAMLP

 

“Well Read + Understanding the Application of Law = New Patients”

 

Many of my family members are medical doctors, a fact I am very proud of. When I decided to apply to chiropractic school and informed my parents, they did what any good Jewish parents from New York would do; they found a contact in a reputable medical school and offered a sum of money for me to get accepted. Mind you, my parents were very blue collar and didn’t have lots of money, but for this money was found. It was about their son who they wanted to be a “real doctor.” Obviously, I didn’t go to medical school, although the door was opened. I found something better for me.

 

My family members, the “real doctors,” would corner me at family functions and educate me about the real doctors for bones, the orthopedists. They would tell me that was how I should practice. They promised to guide me through the process and help me get there.  They were appalled that I would even consider being a “quasi-professional,” also known as a “quack.” Family functions were never as much fun as in the beginning of my career.

 

The only one that was enthusiastic was my father-in-law who had to go AWOL from the Army during his posting in the Korean War, while stationed in Las Cuzas, New Mexico, in the 1950’s. He had to sneak out of the base, with the possibility of a dishonorable discharge, to get chiropractic care because he hurt his back and the Army had no answers for him.

 

As a side note, if we fast forward 40 years to any family function, there is a long line at my portable adjusting table. Those same medical doctors fight to see who is going to get adjusted first. The last word is always the best!

 

What I did notice and learned in those 40 years, through every family function, every vacation and every visit to their homes, was that the MD’s were always reading. They were always staying on the cutting edge of science in learning their craft better. In the beginning of my career, no that’s not the truth, through the first 10 years of my career, my egotistical, snobbish, assholish attitude would sit back and say to myself, “What schmucks! I already know what to do.”

 

At about the 10 year mark in practice, while adjusting my cousin Richard, a pediatric ophthalmological surgeon specializing in strabismus, he started quoting research on musculoskeletal related issues. He was asking me about how my adjustments affected spinal degeneration. He was concerned about some of the medications that were recommended for children that led to arthritis and wanted to know if chiropractic had any solutions in preventing that, as the article was talking about physical therapy. This was a children’s eye surgeon asking about chiropractic care for his patients and it was the best optical examination I ever had; he opened my eyes. He opened my eyes by confirming that I was the schmuck!

 

Now that my eyes were open, I had to read, and except for novels, I didn’t enjoy reading. Therefore, it was an effort until I really started reading. The first thing I read was Roentgenology of the Spine, by Lee Hadley MD, a textbook. It was a textbook about different levels of spinal degeneration throughout a lifetime of a patient and that had major practice implications for me. I quoted this book to patients for over 20 years and it helped me understand why a lifetime of chiropractic care was necessary for every person who is an upright biped. That was just the first book I read!

 

It didn’t stop because I kept reading and at family functions, I was able to carry on conversations with family member MD’s about the latest research with a pro or con opinion and share the manner in which chiropractic weighed in. I also listened and learned and stopped being an “opinionated horse’s ass.” It was at that time that my family members started getting under my care and referred patients to me. During that stage of my career, I was primarily a family practitioner, adjusting 100’s of children weekly, and had yet to break into the world of personal injury.

 

Unfortunately, although I lived in a very healthcare liberal region of Long Island, the local MD’s were still intent on ridding the community of the “chiropractic blight” and they weren’t polite about their intentions. It was also during this time that I was the Executive Board of Director (President) of my state’s organization and spent significant time in my state’s capital. Although the local MD’s weren’t interested in my knowledge, it appeared that our state’s legislators, senators and assemblymen, were very interested in what I knew and my ability to communicate that knowledge.

 

Senator Ken LaValle, the ranking republican in the Education and Higher Education Committee at that time, was particularly interested. He introduced me to his chief legal aide, an attorney who was the legal counsel for the Higher Education Committee to the New York State Senate and responsible for every education bill and every political appointee to every professional board in the state of New York. It was this relationship and others like it that stemmed from being well read and helped serve chiropractic in New York State and continued to do so until, well, now, as I spoke to that attorney just a few days ago.

 

When I met the neurosurgeon in that well-chronicled meeting who challenged me as being the king of bullcrap, I decided to start reading about disc and trauma related issues. That was a three year journey and along the way I began to understand the power of research with lawyers. Lawyers need research to succeed in the practice of law as much as we need research to help patients get well. Lawyers use the knowledge as leverage in negotiations. To understand the lawyer and the use of the law, you have to understand the “legal argument,” “stare decisis” and “legal arguments both with and without precedent.”

 

This is about applying precedents and information in the cases of the lawyers. It should also shed some light on the legal process that your testimony is now part of. If you are not well read, consider this your beginning…

 

go to the educational library in our consulting site...

Introduction

It gives away no secret to observe that lawyers have their own unique discipline and approach to the resolution of legal problems. Not surprisingly, there are laws about determining the law. One of the most important of these laws is the law of precedent or stare decisis. That doctrine and its significance in practical terms are the subject matters of this paper. This paper is also about how a lawyer in everyday practice answers a legal question and how that lawyer evaluates and formulates legal arguments. The paper is only to a very limited extent concerned about the practical problems of how to find or look up the law; rather, the concern is how a lawyer should deal with the authorities that he or she finds. Because different legal systems have different approaches to the proper way of deciding a legal point, the perspective will be Canadian and primarily that of Ontario.

The doctrine of stare decisis

What is the doctrine of precedent or of stare decisis? Professor Gall described it in the following terms:

The operation of the doctrine of stare decisis is best explained by reference to the English translation of the Latin phrase. "Stare decisis" literally translates as "to stand by decided matters". The phrase "stare decisis" is itself an abbreviation of the Latin phrase "stare decisis et non quieta movere" which translates as "to stand by decisions and not to disturb settled matters".

Basically, under the doctrine of stare decisis, the decision of a higher court within the same provincial jurisdiction acts as binding authority on a lower court within that same jurisdiction. The decision of a court of another jurisdiction only acts as persuasive authority. The degree of persuasiveness is dependent upon various factors, including, first, the nature of the other jurisdiction. Second, the degree of persuasiveness is dependent upon the level of court which decided the precedent case in the other jurisdiction. Other factors include the date of the precedent case, on the assumption that the more recent the case, the more reliable it will be as authority for a given proposition, although this is not necessarily so. And on some occasions, the judge's reputation may affect the degree of persuasiveness of the authority.1

In Learning the Law (9th ed. 1973), Glanville Williams describes the doctrine in practical terms:

What the doctrine of precedent declares is that cases must be decided the same way when their material facts are the same. Obviously it does not require that all the facts should be the same. We know that in the flux of life all the facts of a case will never recur, but the legally material facts may recur and it is with these that the doctrine is concerned.

The ratio decidendi [reason of deciding] of a case can be defined as the material facts of the case plus the decision thereon. The same learned author2 who advanced this definition went on to suggest a helpful formula. Suppose that in a certain case facts A, B and C exist, and suppose that the court finds that facts B and C are material and fact A immaterial, and then reaches conclusion X (e.g. judgment for the plaintiff, or judgment for the defendant). Then the doctrine of precedent enables us to say that in any future case in which facts B and C exist, or in which facts A and B and C exist the conclusion must be X. If in a future case A, B, C, and D exist, and the fact D is held to be material, the first case will not be a direct authority, though it may be of value as an analogy.3

It follows from William's analysis that the addition of fact D to a future case means that conclusion X may or may not follow. In other words, the presence of a new fact D may have the effect of distinguishing the future case from the precedent or conversely the precedent may be extended to apply to the future case.

There is considerable literature about whether the doctrine of stare decisis is a good or bad one4 but, the doctrine is usually justified by arguments which focus on the desirability of stability and certainty in the law and also by notions of justice and fairness. Benjamin Cardozo in his treatise, The Nature of the Judicial Process stated:

It will not do to decide the same question one way between one set of litigants and the opposite way between another. "If a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my breast; it would be an infringement, material and moral, of my rights."5 Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.6

In Sweney v. The Department of Highways,7 Middleton J.A. for the Ontario Court of Appeal stated:

But, in my view, liberty to decide each case as you think right, without regard to principles laid down in previous similar cases, would only result in a completely uncertain law in which no citizen would know his rights or liabilities until he knew before what Judge his case would come and could guess what view that Judge would take on a consideration of the matter, without any regard to previous decisions.8

That the doctrine of stare decisis is related to justice and fairness may be appreciated by considering the observation of American philosopher William K. Frankena as to what constitutes injustice:

The paradigm case of injustice is that in which there are two similar individuals in similar circumstances and one of them is treated better or worse than the other. In this case, the cry of injustice rightly goes up against the responsible agent or group; and unless that agent or group can establish that there is some relevant dissimilarity after all between the individuals concerned and their circumstances, he or they will be guilty as charged.9

The critics of the doctrine accept it as the general rule but chafe under it when the staleness of old law leads to unfairness and injustice. For example, Lord Denning, the former Master of the Rolls has argued:

If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they should serve, they may find the whole edifice comes tumbling down about them. Just as the scientist seeks for truth, so the lawyer should seek for justice. Just as the scientist takes his instances and from them builds up his general propositions, so the lawyer should take his precedents and from them build up his general principles. Just as the propositions of the scientist fail to be modified when shown not to fit all instances, or even discarded when shown in error, so the principles of the lawyer should be modified when found to be unsuited to the times or discarded when found to work injustice.10

Stare decisis and the hierarchy of the courts

Keeping with the practical approach of this paper, we will now leave aside this debate and consider the practical problems of dealing with the doctrine as it exists for the practising lawyer. Let us then consider the example of a lawyer preparing legal argument for court.

The lawyer will be appearing before a particular court and the first thing that the lawyer must do is to note the rank of that court in the hierarchy of courts. This is necessary for two reasons: first, because a higher ranking court is not bound to follow the decision of a lower court and second, because some courts do not apply the rule of stare decisis with respect to their own prior decisions.

While it might be thought that it would not be difficult to decide this question of ranking, there are in fact some problems because the hierarchy and the attitude of various courts have changed from time to time. For example, for Canada, appeals to the Privy Council in criminal matters were abolished in 193311 and it was only in 1949 that all Canadian appeals to the Privy Council were abolished.12 In Ontario, from 1895 to 1931 but not afterwards, there was a section of the Judicature Act which obliged a Judge of the High Court not "to disregard or depart from a prior known decision of any other judge of co-ordinate authority on any question of law or practice without his concurrence."13 Further, perhaps by reason of the abolition of appeals to the Privy Council or perhaps because of the example of the House of Lords which in 1966 announced that it would reverse itself in proper cases14or perhaps because of the maturing of Canadian jurisprudence, the Supreme Court of Canada has relatively recently reassessed its own position on the effect of its own prior decisions. In light of these changes, the current position for Ontario jurisprudence appears to be as follows:

  • The Supreme Court of Canada is not bound to follow its own prior decisions or the decisions of the Privy Council.15 As Professor Gordon Bale has noted:


The Supreme Court can no longer be content to say that the case is governed by an earlier decision either of its own or of the Privy Council unless the decision provides the proper reconciliation of the competing interests which are involved.16

  • All Canadian courts are bound to follow a precedent of the Supreme Court of Canada17 and any pre-1949 decision of the Privy Council which has not been overruled by the Supreme Court of Canada. A minority opinion of the Supreme Court of Canada is, however, not binding.18
  • The Ontario Court of Appeal is not bound to follow a decision of the appellate court of another province.19
  • The Ontario Court of Appeal will generally be bound by its own prior decisions unless the liberty of the subject is involved or unless the prior decision was given per incuriam, that is, inadvertently without consideration of an applicable authority or statutory provision.20 It should be noted by comparison that appellate courts in certain other provinces have allowed themselves greater freedom in overruling their own prior decisions.21
  • All Ontario provincial courts lower than the Court of Appeal are bound to follow a decision of the Ontario Court of Appeal.22 A Divisional Court decision as a decision of an intermediate court of appeal would bind lower courts. (It should be noted that the Divisional Court also sits as a court of first instance.)
  • All Ontario provincial courts are not bound by the decisions of the appellate courts of other provinces or by decisions of the Federal Court of Appeal.23
  • A decision of a court of co-ordinate jurisdiction is not binding24 although where there is conflict it may be appropriate to refer the case to the Court of Appeal.25 It should be noted that in certain circumstances, the District Court may have co-ordinate jurisdiction with the High Court and not be obliged to follow the decision of the otherwise higher court.26Similarly, it seems that with respect to procedural matters, the Master's Office and the District Court may be considered to be co-ordinate courts.
  • While decisions of co-ordinate courts are not binding, these decisions are highly persuasive. This is because of the concept of judicial comity which is the respect one court holds for the decisions of another. As a concept it is closely related to stare decisis. In the case of R. v. Nor. Elec. Co.,27 McRuer C.J.H.C. stated:


I think Hogg J. stated the right common law principle to be applied in his judgment in Rex ex rel. McWilliam v.Morris, [1942] O.W.N. 447 at 448-9, where he said: "The doctrine of stare decisis is one long recognized as a principle of our law. Sir Frederick Pollock, in his First Book of Jurisprudence, 6th ed., p. 321: "The decisions of an ordinary superior court are binding on all courts of inferior rank within the same jurisdiction, and though not absolutely binding on courts of co-ordinate authority nor on the court itself, will be followed in the absence of strong reason to the contrary...".

I think that "strong reason to the contrary" does not mean a strong argumentative reason appealing to the particular judge, but something that may indicate that the prior decision was given without consideration of a statute or some authority that ought to have been followed. I do not think "strong reason to the contrary" is to be construed according to the flexibility of the mind of the particular judge.


Legal argument when there is a precedent

Thus noting the court ranking of the judge before whom the lawyer will be appearing and guided by the doctrine of stare decisis, the lawyer will then prepare his or her argument. Usually, the best position for the lawyer occurs when there is a precedent case supporting his or her client's case. The lawyer will then argue that the court is either bound, or that the court, if not actually bound, ought to be persuaded by the precedent case to find in the client's favour. In his or her research, the lawyer will therefore look for cases with results which support the client's position and the lawyer will prepare to argue that the ratio decidendi of those precedent cases covers the facts of the case at bar. However, just locating and evaluating the prospects of precedent cases is not easy since it is often difficult to determine and articulate the authority of a case. Moreover, skill is necessary to analyze and organize the material facts of both the precedent case and the case at bar. That said, more difficult problems of legal reasoning and legal argument occur when the lawyer is unable to find a close case or any case at all or, worse yet, when a case presents itself which appears to be unfavourable. How does the lawyer deal with these problems?

To get around an apparently unfavourable case, there are a number of tools and techniques available to the lawyer. The lawyer may not simply ignore the unfavourable case and hope that the other side does not discover the authority. This is unethical28 and with respect it may be submitted that it is also unethical and intellectually dishonest for a judge in deciding a case to simply ignore a precedent case which stands in the way of the decision that the judge wants to make. This is not to say that lawyers and judges must deal with every case that remotely touches on a subject but only that there should be an honest effort to play by the rules.

The techniques that are available follow as a consequence of accepting and then manipulating the doctrine of stare decisis. The techniques structure and direct the lawyer's legal reasoning and argument. The following are generally recognized:

  • The lawyer can argue that the precedent case does not stand for the legal proposition for which it has been cited. In other words, the lawyer articulates the ratio decidendi of the case differently. An example of this may be found in the treatment of the case of Rivtow Marine Ltd. v. Washington Iron Works.29 In The Attorney General for the Province of Ontario v. Fatehi,30 Estey J. without resolving the difficulties associated with this case observed:


Nonetheless it must be acknowledged that Rivtow has been variously applied or rejected by the courts of this country, some of whom find in the majority judgment recognition of economic loss and some of whom have found the opposite.31

  • The lawyer can argue that while the precedent case does articulate the legal proposition for which it has been cited, nevertheless the proposition was obiter dicta (things said by the way). Subject to an exception for considered pronouncements of the law by appellate courts, comments by the judge which are not part of the ratio decidendi are obiter dicta and are theoretically not binding in a subsequent case.32 The exception is that where an appellate court expresses a considered opinion on a point of law then such ruling is binding on the lower courts notwithstanding that it was not absolutely necessary to rule on the point in order to dispose of the appeal.33 

    It should be noted that if a judge rests his decision on two different grounds neither can be characterized as obiter dictum.34
  • The lawyer can argue that while the precedent case does stand for the legal proposition for which it has been cited, the case has been effectively overruled by a decision of a high court or by the introduction of a new statute. Examples of this kind of legal argument will obviously occur after significant decisions of the Supreme Court of Canada. For instance that Court's decision in Kamloops v. Nielsen35 did away with the distinction between non-feasance and misfeasance in negligence actions against municipalities and many old cases which turned on that distinction can no longer be relied upon.
  • The lawyer can argue that while the precedent case does stand for the legal proposition for which it has been cited, the case at bar is different; that is, the cases are factually distinguishable. Glanville Williams suggests that there are two kinds of "distinguishing": restrictive and non-restrictive and states:


Non-restrictive distinguishing occurs where a court accepts the expressed ratio decidendi of the earlier case, and does not seek to curtail it, but finds that the case before it does not fall within this ratio decidendi because of some material difference of fact. Restrictive distinguishing cuts down the expressed ratio decidendi of the earlier case by treating as material to the earlier decision some fact, present in the earlier case, which the earlier court regarded as immaterial.


An example of restrictive distinguishing may be noted in the House of Lords decision in Peabody Fund v. Sir Lindsay Parkinson Ltd.,36 where the Court restricted the application of Anns v. Merton London Borough.37 The Anns case is cited as authority for the proposition that a municipality may be liable in negligence where it fails to properly inspect building plans. In the Peabody Fund case, by defining the duty of the municipality as being owed to owners and occupiers threatened with the possibility of injury to safety or health, the House of Lords specified and made less general, the scope of the municipality's responsibility as it had been defined in the Anns case. In the result, the Court did not allow a claim by the developer of a housing project who suffered damages when the municipality's drainage inspector failed to point out that the drainage system was not being installed in accordance with the approved design.38 Thus, in Peabody Fund the element of restrictive distinguishing is the introduction of the requirement of the possibility of injury to safety or health.

An example of non-restrictive distinguishing may be noted in the Supreme Court of Canada decision in Town of the Pasv. Porky Packers Ltd.39 In this case, the Court noted that the authority of Hedley Byrne  Co. Ltd. v. Heller40 required the plaintiff in a negligent misrepresentation claim to show that he relied on the skill and judgment of the party from whom he had received incorrect information. In the Porky Packers case the plaintiff had received incorrect zoning advice from municipal officials but the plaintiff's representative was a former municipal council member who had more expertise in planning matters than the officials. In these circumstances, there could be no reliance and the doctrine or authority ofHedley Byrne by its own criteria was not available. The plaintiff's claim was dismissed. The material fact of the plaintiff's lack of reliance provided the element for non-restrictive distinguishing of Hedley Byrne.

  • Where the case being relied upon has a built in public policy factor, the lawyer who wishes to distinguish the case may argue that public policy has changed and while the legal principle of the precedent case is still good law, it is distinguishable because of the change of circumstances. The possibility of this type of argument was noted in the case ofNordenfelt v. Maxim Nordenfelt Guns and Ammunition Co.,41 an important case with respect to the principle that contracts in restraint of trade may be voidable on grounds of public policy. In his judgment in this case, Lord Watson noted:


A series of decisions based upon grounds of public policy, however eminent the judges by whom they were delivered, cannot possess the same binding authority as decisions which deal with and formulate principles which are purely legal.42

  • The lawyer can argue that while the precedent case does stand for the legal proposition for which it has been cited, there is another precedent of equal weight which stands for the opposite proposition. The lawyer then goes on to argue that it is that other case which the court should follow. This type of argument is related to but in the end result different from the "per incuriam argument" because it does not necessarily challenge either decision as having been given per incuriam. The rule is rather that the court may decide which one of the conflicting decisions to follow. Interestingly and as will be seen in a somewhat ironical way, the availability of this rule in Ontario is itself an example of the rule. The legal argument follows. 

    The 1876 Ontario appellate decision of Fisken et al. v. Meehan43 is authority for the proposition that where there are conflicting decisions of equal weight the court should follow the more recent decision. Lower courts followed the Fisken et al. v. Meehan rule in Bank of Montreal v. Bailey and Bailey,44 and in Chiwniak v. Chiwniak,45 although in ChiwniakWilson J. described the duty imposed by the rule to be presumptuous.46

    However, in Hamilton v. Hamilton47 Middleton J., sitting as a lower court judge, said that where there are conflicting decisions, the lower court judge may follow the decision which commends itself most to him. Unfortunately, Middelton J. does not cite the Fisken case and the Hamilton v. Hamilton decision may thus be said to have been given per incuriam. But, in 1958 the Court of Appeal decided Woolfrey v. Piche.48 In that case, LeBel J.A. stated:


...but I am now faced with two conflicting decisions in this Court on the same point, and in that unfortunate state of things I apprehend that I must choose between them as I have done. That is what was done in Young v. Bristol Aeroplane Co., [1944] 1 K.B. 718, where three exceptions to the application of the rule in Velazquez [the stare decisis rule] were stated. One of these (the first incidentally) is that "the court is entitled and bound to decide which of two conflicting decisions of its own it will follow". [p. 729] There is authority also for the proposition that where two cases cannot be reconciled, the more recent and the more consistent with general principles ought to prevail. See Campbell v. Campbell (1880), 5 App. Cas. 787 at p. 798.49 [emphasis added]


The Fisken decision is again not cited gut its principle that the later of two conflicting cases should be followed is acknowledged but qualified by the requirement that the later case be more consistent with general principles. Thus, to the extent that there is any inconsistency between Fisken v. Meehen with Woolfrey v. Piche, the Fisken case directs thatWoolfrey be followed. If the Woolfrey rule is used to resolve any conflict in authority between the cases, it must come down on its own side or it would not be an authority. If there is no inconsistency between the cases because of the qualification or explanation noted by LeBel J.A. then again the Woolfrey rule will be followed.

Legal argument when there is no binding precedent

The above seven types of legal argument are the principle techniques used to get around an apparently binding precedent and we can turn next to the problem of not being able to find a precedent case. Because there is considerable room for imagination and creativity in responding to this problem, it is more difficult to identify the main techniques. Nevertheless, some typical responses may be identified. Below we will consider three classical types of legal reasoning used in these circumstances. Again the doctrine of stare decisis, this time in spirit, may be noted.

  • Where a lawyer cannot find a binding precedent, he or she may rely on a non-binding precedent from another jurisdiction. While not obliged to do so, the court may be impressed with or be persuaded by the reasoning and be prepared to adopt the rule established by the foreign case. However, care must be taken in employing this technique because it often necessitates reviewing the foreign law to determine whether there may be underlying differences in principles which qualify or which may diminish the persuasiveness of the foreign case. For example, decisions on theAmerican Bill of Rights will obviously be important and helpful in interpreting our own Charter of Rights and Freedoms. However, it must not be lost sight of that there is no provision in the American Constitution comparable to the provision in our Charter that the rights set out "are guaranteed subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society".50