784 THE ADVOCATE
VOL. 77 PART 5 SEPTEMBER 2019
explains the society’s name: “In the popular Sherlock Holmes adventure
The Hound of the Baskervilles, a boot is stolen from Sir Henry Baskerville.
Later in the story we find out it was to enable the Hound to find him and
kill him. That iconic boot was made in Toronto by a bootmaker called Meyers.
So the Society is called The Bootmakers of Toronto and the leader of the
Society is referred to as Meyers.”
Tempted to apply the Sherlock Holmes maxim (as found in The Sign of Four)
that “when you have eliminated the impossible, whatever remains, however
improbable, must be the truth”? Well, pause at least to read the caution
of Lord Brandon of Oakbrook in Rhesa Shipping SA v. Edmunds (the Popi M),
1985 1 W.L.R. 948 at 955:
In my view there are three reasons why it is inappropriate to apply the
dictum of Mr. Sherlock Holmes, to which I have just referred, to the
process of fact-finding which a judge of first instance has to perform at
the conclusion of a case of the kind here concerned.
The first reason is one which I have already sought to emphasise as being
of great importance, namely, that the judge is not bound always to make
a finding one way or the other with regard to the facts averred by the parties.
He has open to him the third alternative of saying that the party on
whom the burden of proof lies in relation to any averment made by him
has failed to discharge that burden. No judge likes to decide cases on burden
of proof if he can legitimately avoid having to do so.
There are cases, however, in which, owing to the unsatisfactory state of
the evidence or otherwise, deciding on the burden of proof is the only
just course for him to take.
The second reason is that the dictum can only apply when all relevant
facts are known, so that all possible explanations, except a single
extremely improbable one, can properly be eliminated. That state of
affairs does not exist in the present case …
The third reason is that the legal concept of proof of a case on a balance
of probabilities must be applied with common sense. It requires a judge
of first instance, before he finds that a particular event occurred, to be
satisfied on the evidence that it is more likely to have occurred than not.
If such a judge concludes, on a whole series of cogent grounds, that the
occurrence of an event is extremely improbable, a finding by him that it
is nevertheless more likely to have occurred than not, does not accord
with common sense. This is especially so when it is open to the judge to
say simply that the evidence leaves him in doubt whether the event
occurred or not, and that the party on whom the burden of proving that
the event occurred lies has therefore failed to discharge such burden.
Jackson C. Doyle (no relation to Arthur C.) was recently elected as treasurer
for the CBABC Health Law subsection for a one-year term.