BENCH AND BAR

or as it is not one swallow or one fine day that makes a spring, so it is not one day or a short time that makes a man blessed and happy”, noted Aristotle in the Nicomachean Ethics. That may be so, but the invocation of a Greek philosopher or two often seems to make a judge’s day, and we hope makes your time reading this column a happy occasion as well.

Baker Newby in Abbotsford sees the addition of Pamela Bakshi, previously at Krentz & Hedman. Isaac E. Shieh is now at 606 Essex Chambers, leaving Lawson Lundell. Betony Rowland moves from BKS Law to join Legacy Tax + Trust Lawyers. Formerly with MacLean Law, Anastasiya Sadovska lands at Clark Wilson. Affinity Law Group turns off the lights and its lawyers Darcy Wray, Ari M. Shack, Power Chen and Jesse Wray join the Vancouver office of Miller Thomson. Hamish D. Gray joins Harper Grey from Powell, Gray & Kim. Kit S. Perrick jumps from Kerfoot Burrows to Burns Fitzpatrick. Peter J. Haley moves to the Vancouver office of Lawson Lundell from Farris. Maxim (Max) Rudakov throws in the chips at Lawson Lundell to take up an in-house post at Gateway Casinos. Curtis Basham moves from Dentons to join Gudmundseth Mickelson. Branch MacMaster bids farewell to Rylee Hunter, who moves to join Clark Wilson. Sara Tebbutt Albert launches Abbotsford’s newest law firm, Albert & Co. Law, moving from RDM Lawyers to do so. Keri L. Bennett is now with DLA Piper’s Vancouver office. She was previously at Roper Greyell. Andrea J. Piercy moves from Hamilton Duncan to head up the new office of Cozen O’Connor in Vancouver.

Lawyers who have moved their practices should e-mail details of their past and present circumstances to Peter Roberts, K.C., at <benchandbar@the-advocate.ca> to ensure an appearance in “Bench and Bar”. Note that we do not report changes in lawyers’ status within their firms (from associate to partner, for example) other than in cases where persons formerly articled have been hired as associates.

In Fulton v. The Globe & Mail, 1996 CanLII 10551 (Alta. K.B.), Master Funduk noted that he was “firmly convinced that if a lawyer is prepared to search long enough and diligently enough he will find a court judgment somewhere where some of the language, taken out of context, will support the proposition the lawyer advocates. But court judgments are not some long dead Greek philosopher’s ethereal debate about whether a road runs in only one direction. Court judgments are decisions on disputes between real people, with real facts and real issues. What is said in them must always be taken in context.”

Harjit (Harj) S. Sangra spent some wonderful years at the UBC Faculty of Law (as it was then known) and graduated in 1984 with an LL.B. He went on to found the firm Sangra Mollar and recently made another very generous donation to the Peter A. Allard School of Law to renew the Sangra Memorial Entrance Award. This award will support one incoming J.D. student per year over the next ten years. The award is in memory Mr. Sangra’s mum, Gurbax Sangra, who was an ardent believer in higher education and the opportunities it provides.

The University of Chicago Law School embraces the Socratic method, describing the philosopher as “asking continual questions until a contradiction was exposed, thus proving the fallacy of the initial assumption”. The law school notes: “The Socratic Method is not used at UChicago to intimidate, nor to ‘break down’ new law students, but instead for the very reason Socrates developed it: to develop critical thinking skills in students and enable them to approach the law as intellectuals.”

Sharleen L. Dumont has been re-appointed for a further three-year term as a vice chair of the Complaints Investigation Committee of the Law Society of Yukon.

In Illinois v. Kilpatrick, 657 N.E.2d 1005 (1995), the court considered whether a trial court had improperly increased a sentence after it had been imposed by vacating the defendant’s consecutive sentences of nine and six years’ imprisonment and instead imposing a “single sentence” of 15 years’ imprisonment. Justice Heiple, dissenting, disagreed with the majority’s view that the trial court had increased the sentence, writing:

Although diligent legal research disclosed analogous cases in support of my position (i.e., 2 plus 2 equals 4, etc.), I was unable to come up with a precise case involving the figures 9 plus 6. Nonetheless, in mathematics at least, if not in law, this axiomatic principle has been universally accepted since the time of Pythagoras in the 6th century B.C. That is to say, the fact that 9 plus 6 equals 15 has been considered self-evident for the last 2,500 years of recorded history. Accordingly, I respectfully dissent.

Richard J.S. Rainey was appointed to the board of directors of the British Columbia Assessment Authority for a term ending February 15, 2024.

In No Frills Owners v. United Food and Commercial Workers Canada, Locals 175, 2014 CanLII 27707 (Ont. L.A.), which related to the meaning of the word “lesser” in the phrase “lesser or greater contribution”, the union argued that “lesser” cannot mean “zero”, and provided various dictionary definitions in support of its position. The arbitrator noted that “[t]here was even reference in the union’s argument to a mathematical paradox that vexed ancient Greek philosophers: a number, such as a distance to be travelled, can be cut in half infinitely and still never reach zero.” The arbitrator commented, parenthetically: “This is known as Zeno’s paradox; it has not figured prominently in the arbitral jurisprudence.”

Also referring to Zeno, in Hogan v. State of Mississippi, 516 So.2d 474 (1987), the Supreme Court of Mississippi noted that this “Greek philosopher-mathematician, centuries before algebra or the digital numeral system of arithmetic were discovered, created an impossible problem in logic for the Greeks”. Zeno’s example was along the following lines: “A tortoise is placed 100 yards ahead of a hare. Each minute the hare decreases the distance between the two of them by one-half. According to Zeno, although the hare would get closer each minute, he could never overtake the tortoise. He would always remain at some distance behind it.” In this regard, the court noted that “[w]hile Greek philosophers and logicians argued for several centuries on Zeno’s problem, and indeed philosophers still debate the matter, it was no doubt clear to any Athenian walking the streets that if the race continued, the rabbit would soon overtake the turtle.”

Donald J. Avison, K.C., was appointed to the board of Emily Carr University of Art and Design for a term of two years.

Among the many accomplishments of Chief Justice Bauman is referencing six Greek philosophers in a single paragraph of Reference re: Section 293 of the Criminal Code of Canada, 2011 BCSC 1588 when still presiding over the B.C. Supreme Court: “The classical civilizations of Greece and Rome are the source of many core Western values; liberty, democracy and the rule of law among them. Monogamous marriage is another institution that finds its roots in this ancient world … The function of marriage as described by classical philosophers - including Plato, Aristotle, Cicero, Musonius, Hierocles and Plutarch - was as a source of private goods for men, women and children, and of public goods for rulers, citizens and society”.

Lori J. Wanamaker was reappointed as a director and appointed as chair of the British Columbia Hydro and Power Authority.

Mount Socrates (2,305 m) is part of the Academy Ridge group and is located on the west side of upper Yash Creek in northern British Columbia in the Muskwa range just south of Highway 97 and Muncho Lake Park. It is just west of Mount Plato (2,381 m). Also nearby to the south is Mount Aristotle (2,123 m). However, Plato does better in name recognition as there is also a Plato Island in Quesnel Lake. Pythagoras and Thales both strike out in being remembered in any officially named geographical features in British Columbia.

In a case about judicial immunity, the Supreme Court of Appeals of West Virginia noted: “We do not pretend that judges behave like Plato’s philosopher kings, attuned only to the form of the good and undistracted by man’s baser appetites. But the uncomely vision of a judiciary hamstrung by civil liability compels us to reaffirm the strength and vitality of judicial immunity”: Pritchard v. Crouser, 332 S.E.2d 611 (1985).

Christine H. Arnold was reappointed as a member of the council of the College of Veterinarians of British Columbia for a term ending April 21, 2026.

“The ancient Greek Heraclitus said, ‘Strife is the source of all things.’ Lawyers and Judges know that on the anvil of debate much is hammered out that otherwise would have remained unshapen metal”: United States v. Worcester, 190 F. Supp. 548 (D. Mass. 1961).

June 4 to 11, 2023 has been proclaimed and declared as Heraldry Week.

In Ontario (Attorney General) v. Fraser, 2011 SCC 20, the following comment (of McIntyre J. in Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313) was described in the reasons of Charron and Rothstein JJ. as reflecting a “general consensus amongst members of the Court”: While freedom of association like most other fundamental rights has no single purpose or value, at its core rests a rather simple proposition: the attainment of individual goals, through the exercise of individual rights, is generally impossible without the aid and cooperation of others. “Man, as Aristotle observed, is a ‘social animal, formed by nature for living with others’, associating with his fellows both to satisfy his desire for social intercourse and to realize common purposes.”

John E. A. Chesko, Mona M. Muker, Brandon M.W. Mewhort, Jonathan M. Chapnick, Ryan S. Goldvine, Robert E. Groves and Richard W. Grounds were all reappointed to the Employment Standards Tribunal for various terms.

“It has been recognized since Aristotle that equal treatment is not necessarily equivalent to identical treatment”: Barber v. Sears Canada Inc. (No. 3), 1994 CanLII 18417 (Ont. H.R.T.).

Joanna M. Gislason was appointed to the Forensic Psychiatric Services Commission.

“Heraclitus quipped that you cannot step twice into the same river. A corporate group is always changing, and the change flows more swiftly than many rivers”: Central States, Southeast and Southwest Areas Pension Fund v. Sherwin-Williams Company, 71 F.3d 1338 (7th Cir. 1995).

“A professional sports team is like Heraclitus’s river: always changing, yet always the same”: Indianapolis Colts, Inc. v. Metropolitan Baltimore Football Club Limited Partnership, 34 F.3d 410 (7th Cir. 1994).

In the broadband-related AT&T Corp. v. City of Portland, 216 F.3d 871 (9th Cir. 2000), the court declined to consider “what our national policy should be concerning open access to the Internet”, noting that “in our quicksilver technological environment it doubtless would be an idle exercise. The history of the Internet is a chronicle of innovation by improvisation … Like Heraclitus at the river, we address the Internet aware that courts are illsuited to fix its flow; instead, we draw our bearings from the legal landscape, and chart a course by the law’s words.”

Effective March 1, 2023 to March 1, 2025, no application for Crown land may be made with respect to a Float Home or a Floating Home Community within the South Coast Region, as shown on the map in Schedule A, with exceptions as described. If that piques your interest, the Schedule A map described can be found as part of Ministerial Order No. 24 proclaimed pursuant to the Land Act

Writing in Perka v. The Queen , [1984] 2 S.C.R. 232 about the necessity defence, Dickson J. (as he then was) noted that “[f]rom earliest times it has been maintained that in some situations the force of circumstances makes it unrealistic and unjust to attach criminal liability to actions which, on their face, violate the law”. For example, “Aristotle, in the Nicomachean Ethics, Book III, 1110a (trans. D. Ross, 1975, at p. 49), discusses the jettisoning of cargo from a ship in distress and remarks that ‘any sensible man does so’ to secure the safety of himself and his crew”. In R. v. Willis (TAW), 2016 MBCA 113, the court noted that in relation to the defence of duress, writers including Aristotle have “commonly resort[ed] to the use of hypotheticals”.

Cristie L. Ford and Mona M. Muker were each appointed as a member of the Financial Services Tribunal for a term of two years. Ms. Ford was also designated as vice chair.

Erin L. Frew was appointed as a member and designated as chair of the Property Assessment Appeal Board for a term ending February 15, 2028.

Peter F. Buxton, K.C., was recently appointed as president of the Surrey Bar Association.

Lorna Strong, currently with HSBC in London, U.K., was recently awarded the Alumni Builder Award by the Peter A. Allard School of Law in recognition of her contributions as a volunteer speaker and lecturer for the law school and alumni UBC, as a member of the Centre for Business Law’s Dean’s Advisory Committee, and for her support of student financial aid.

In Aspen Interiors Inc v. Wawanesa Mutual Insurance Company, 2015 SKQB 3, the court considered whether insurance would cover damage to an articulating boom lift caused when it was being operated—negligently—by one of the plaintiff’s employees. The defendant insurance company sought to rely on one of the exclusions under the policy: “The weight of the load exceeding the registered lifting or supporting capacity of any machine.”

The court described the incident as occurring when the plaintiff was involved in the construction of a commercial building in Saskatoon. Matters got exciting, as the lift “became immobilized at the construction site; specifically, it was stuck in the mud. The plaintiff’s operator, S.C., attempted to free the Lift from the mud by rocking it back and forth. That effort bore no fruit.” The court continued:

S.C. is apparently a devotee of Archimedes mantra, “Give me a lever and a place to stand and I shall move the world.” In furtherance of that, S.C. then put the telescoping arm of the Lift and the basket, the [Boom], into the ground and then extended the telescoping Boom with a view to levering the Lift out of the mud.

One of the lesser known corollaries to Archimedes mantra is that the lever must have an appropriate degree of tensile strength vis-à-vis the object to be moved. In this instance, not only did the attempt at levering the Lift out of the mud not work, it damaged the Boom.

Although the weight of the materials and/or workers hoisted by the lift did not exceed the weight prescribed, “the sensible commercial result is to interpret load in a way which would include external resistance being applied to the Lift or overall force to which the Lift is being subjected”. Thus, as in this case, “the operator was using the Boom as a lever to extract or move the Lift from the mud”, “[t]hat act exceeded the registered lifting or supporting capacity of the Lift”. The exclusion applied.

“Diogenes Laertius, author of a work on Greek philosophy and living in the earlier half of the third century, wrote in his book Lives of eminent philosophers about Plato’s definition of man. He recounts how Plato was applauded when he defined man as ‘an animal, biped and featherless’. When Diogenes of Sinope, or the Cynic, plucked a fowl and brought it into the lecture-room with the words ‘Here is Plato’s man’, ‘having broad nails’ was added to the definition”: GFKL Financial Services (Taxation), [2011] EUECJ C-93/10.

In Marcinkiewicz v. General Motors of Canada Co., 2022 ONSC 2180, the court said that at the heart of the proposed products liability misrepresentation class action before it was “a semantic paradox of the nature of the ‘Liar’s Paradox,’ which was formulated by the Greek philosopher Eubulides”. The court noted: “A succinct version of the paradox asks the Liar to answer the question: ‘Do you lie when you say you are lying?’” The court added: “Readers beware, the ancient logician Philetas of Cos died an early death in frustration from his failure to solve the ‘Liar’s Paradox’.”

The “saying ‘ignorance of the law is no excuse’, is an ancient one and attributed to the Greek philosopher Aristotle”; it is “equally true now as it was in ancient times”: Smith v NSW Land and Housing Corporation, [2023] NSWCATAP 12.

Robert M. Buergenthal recently joined the Justice Education Society as its new International Program Director.

Celeste A. Haldane, K.C., was reappointed as chief commissioner of the British Columbia Treaty Commission for a term of three years.

Karen R.A. Ameyaw was appointed as a member of the Community Care and Assisted Living Appeal Board for a term of two years.

In Vernon v. Sutcliffe, 2014 NSSC 376, where two sisters sought to remove two brothers as their mother’s lawful attorneys, the court referred to Plato’s discussion in the Republic of “what might be an ideal form of government” and his suggestion that “an ideal city State could be ruled by a philosopher king, and an associated class of guardians, whose role would be to protect the society’s existence in its ideal form over time”. The court cited this as the possible underpinning of the phrase (found in the Satires of the Roman poet Juvenal) “Who will guard the guards?” or “Who watches the watchmen?” The court noted: “While its origins may be of only passing interest to most persons, the phrase raises a transcendent question about who can be trusted with power.”

When you look over at your electronic device in the car, remember that the term “use” of said device is comprehensively defined in the Motor Vehicle Act to mean one or more of the following actions: (a) holding it in a position in which it may be used; (b) operating one or more of its functions; and (c) communicating orally by means of the device with another person or another device. The Use of Electronic Devices While Driving Regulation describes “use” more plainly to mean “a person who watches the screen of an electronic device uses the device.” So don’t even look over at yours when behind the wheel.

In Mesce v. Automobile Association of New Jersey, 8 N.J. Super. 130 (App. Div. 1950) the court described a contributory negligence defence with reference to the story of a Greek philosopher who “[m]any centuries ago … stepped into a well while looking at the stars, from which experience came the maxim: ‘He who looks foresees the peril that the heedless encounters.’”

Delivering the opinion of the U.S. Supreme Court, Justice Kennedy wrote: “Music is one of the oldest forms of human expression. From Plato’s discourse in the Republic to the totalitarian state in our own times, rulers have known its capacity to appeal to the intellect and to the emotions, and have censored musical compositions to serve the needs of the state”: Ward v. Rock Against Racism, 491 U.S. 781 (1989).

“From the condemnation of Socrates to the persecution of modern writers and journalists, our world has seen too many examples of state control of unofficial ideas”: Redmond-Bate v Director Of Public Prosecutions , [1999] EWHC Admin 733.

In Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995), the U.S. Supreme Court considered university funding guidelines that excluded “religious activity”, defined as any activity that “primarily promotes or manifests a particular belie[f] in or about a deity or an ultimate reality”, from funding eligibility. Justice Kennedy, writing for the court, noted the “vast potential reach” of the exclusion as barring, for example, “any writing advocating a philosophic position that rests upon a belief in a deity or ultimate reality”, or any writing presupposing the existence of such a deity or reality. Justice Kennedy noted that “[w]ere the prohibition applied with much vigor at all, it would bar funding of essays by hypothetical student contributors named Plato, Spinoza, and Descartes”. Further, if as the university contended the prohibition covered “student journalistic efforts that primarily manifest or promote a belief that there is no deity and no ultimate reality”, then “undergraduates named Karl Marx, Bertrand Russell, and JeanPaul Sartre would likewise have some of their major essays excluded from student publications”. In this regard, “[i]f any manifestation of beliefs in first principles disqualifies the writing, as seems to be the case, it is indeed difficult to name renowned thinkers whose writings would be accepted, save perhaps for articles disclaiming all connection to their ultimate philosophy. Plato could contrive perhaps to submit an acceptable essay on making pasta or peanut butter cookies, provided he did not point out their (necessary) imperfections.” barbara findlay, K.C., is to be one of 12 recipients of honorary degrees from Simon Fraser University in 2023.

Laura I. Wilson was appointed to the council of the Architectural Institute of British Columbia for a term ending February 1, 2026.

F. Abigail Fulton and Kyong-ae Kim were appointed as members of the board of management of the Association of British Columbia Land Surveyors for terms ending in 2025.

In West v. Bell Helicopter Textron, Inc., No. 14-2168 (2015), a case arising out of a helicopter accident, the U.S. Court of Appeals for the First Circuit noted that “[f]or thousands of years, humanity has looked to the sky and dreamt of flying. Philosophers and poets have had much to say on the subject, leaving in their wake a bevy of quotes and sayings about the beauty of flight”. The court pointed to Plato, who wrote in Phaedrus: “The natural function of the wing is to soar upwards and carry that which is heavy up to the place where dwells the race of gods. More than any other thing that pertains to the body it partakes of the nature of the divine.” The court conceded that “[t]he Federal Rules of Civil Procedure, although elegant in their own way, have so far failed to inspire such devotion”.

“The maxim, ‘like cases should be treated alike,’ attributed to the ancient philosopher Aristotle in Nicomachean Ethics, has been characterized more recently by H.L.A. Hart as ‘a central element in the idea of justice’”: Dak Americas LLC v. United States, Slip Op 20-80 (4 June 2020, United States Court of International Trade).

Thought du mois:

What you leave behind is not what is engraved in stone monuments, but what is woven into the lives of others.

—Pericles, Greek politician (495–429 B.C.)