Course:Law3020/2014WT1/Group W

Odhavji Estate v. Woodhouse

Facts

Plaintiff was shot while fleeing from a bank robbery, plaintiff’s family brought at trial (Ontario Court General Division):

1. Action against police chief was allowed to proceed (tort of misfeasance in a public office)
2. Action against Metropolitan Toronto Police Services Board was not (tort of misfeasance in a public office)
3. Action against the Province of Ontario was not (tort of misfeasance in a public office) for failing to ensure police officers involved were segregated, provided case notes, clothing and blood samples, and attended interviews with the SIU.

Statement of claim alleges mental distress, anger, depression and anxiety as a consequence of the alleged misconduct, but the plaintiffs will have to prove at trial that the alleged misconduct caused anxiety or depression of sufficient magnitude to warrant compensation.

Defendants also brought motion to strike out Plaintiff's statement of claim based on Rules of Civil Procedure, R.R.O. 1990, Reg. 194, r. 21.01(1)(b). (which was not successful)

Issue(s)

Analysis

Natural Law - St. Thomas Aquinas

Elements of Valid Law:

1. Directed to Common Good
2. Follow Practical Reason
3. Must be Made by Valid Lawmaker
4. Must be Promulgated

Legal Positivism

Classical Positivism - John Austin

Austin's Three Directives:

1. God's law: "revealed" law; province of religion
2. Positive morality: norms: manners, customs, club rules, international law, English constitutional law
3. Has to be created in accordance with the rule of law making jurisdiction regarding the creation of law (pedigree test) (origin of the rule).
4. Positive law: command, issued by superiors to subordinates, backed by sanctions

Post WWII Positivism - HLA Hart

Hart Criteria:

1. Primary rules (tell us what is what isn't permitted)
2. Secondary rules (rules that allow us to change the rules, adjudicate disputes about the rules, or figure out what the rules are)
3. Rule of recognition (rules must be recognized by officials, must be applied by officials, and the officials must believe that they ought to apply them)

HLA Hart: positivist view is that laws are human artifacts, not dependent on moral content for validity BUT disobedience may be warranted when laws are immoral