The recent discovery of a periodic table of litigation is expected to bring structure and organization to the confused world of Canadian civil litigation. Litigators across the country are welcoming this development.
Just as the periodic table of elements forms the basis of modern-day chemistry, patterns in the law become apparent when Canadian case law is analyzed and plotted in this fashion.
The information appearing in the PTOL starkly reveals the correlation between various causes of action as well as the defences they inspire.
The first and most pervasive element appearing in the PTOL is general damages. This reflects the maxims
sequere pecuniam (literally “follow the money”) and
accessurus altum sacculos (“look for deep pockets”), which underlie much of modern Canadian litigation and without which so many claims falter.
Immediately after damage claims are clusters representing other forms of relief, substantive areas that occupy the majority of trial courts’ resources, as well as sources of law that are frequently noted in dissenting opinions of the Supreme Court of Canada, among others.
Because defences rely on an altogether different set of principles unfamiliar to plaintiffs’ counsel, they appear in discrete rows at the bottom of the PTOL. Unnamed sources indicated that their inclusion in the PTOL was itself controversial, as some defence lawyers objected to disclosure of this information in a tool available to plaintiffs’ counsel.
The PTOL confirms that the interplay between these legal various elements is not random as was believed by lawyers in the Middle Ages but reflects fundamental forces underlying the nature of litigation itself.
Extensive revamping of law school curricula is expected to follow shortly. By providing new articling students with a copy of the PTOL, provincial law societies are now hoping to be able to eliminate bar admission courses altogether.
Len Polsky is counsel with MacPherson Leslie & Tyerman LLP in Calgary, where he can be found with his tongue firmly implanted in his cheek. He practises litigation and employment law and can be reached at [email protected].
