Then the Court calls me up to drive the Zamboni

Not content with having constitutional principles based on margarine (see below), Canadian case law (and legal education) may now include principles of tort law based on the zamboni! Or “ice resurfacer”, if you want to protect the Zamboni trademark:

The machine is not “a Zamboni,” it is a ZAMBONI ice resurfacing machine. The name must be capitalized and spelled correctly and should never even remotely be used in a generic sense. Never use “Zamboni” as a verb or in the plural, such as “Zambonis.”

Anyway. A zamboni (oops!) is a machine that resurfaces the ice, most notably at hockey games. It’s a popular Canadian (and US) cultural reference; other brands of ice resurfacers are available, of course. The Canadian-based Resurfice Corporation (look at that clever name – but it’s no Zamboni ; ) ), one of the biggest zamboni-making companies (oops!), was one of the parties in today’s case.

Resurfice Corp v Hanke (link to full text). The sad tale of Mr. Hanke, who was injured after filling the gas tank with hot water (which, unfortunately for him caused the gas to shoot up, vaporise and make contact with a heater), is what lies behind this dispute The unanimous Supreme Court disagreed that ‘policy matters’ (such as the relative financial strengths of the parties) were relevant to discussing the foreseeability of the incident, and reasserted the traditional preference for the “but for” test in causation (but for the plaintiff’s actions in putting the hose in the wrong tank, there would have been no accident). The full opinion is short and very well structured, and therefore worth reading. And Hanke doesn’t get his new trial.

Note 1: Why the title to this post? Toronto band Moxy Fruvous recorded a track (on their demo tape and first album) called “King of Spain” (Video | Wikipedia entry | Lyrics), including the line “Now the Leafs call me up to drive the Zamboni”. They would change “Leafs” to a local team in live performances.

Note 2: Margarine Reference (seminal case on federal powers) | UL Canada v Quebec (2005 case) | CBC summary of the history of margarine in Canada. In summary, margarine used to be illegal in Canada, then it was permissible but all the provinces required it to be ‘not yellow’ (apart from Newfoundland which got a special section in its accession/constitution allowing the manufacture/sale to continue!), and while most provinces have opened up the gates of (if not heaven, sandwich bars), Quebec continues to restrict the industry).


3 thoughts on “Then the Court calls me up to drive the Zamboni

  1. What a zany post. I can’t resist two comments. First, the Supreme Court of Canada seems to get more than its fair share of bonkers only-in-Canada fact scenarios; or, to be more charitable, it gets a sizeable number of cases relating to matters of Canadian culture. For example, only in Canada could something as odd as Clamato be popular (for the non-Canadians amongst the readership of this blog, wikipedia says that ‘Clamato (a portmanteau of “clam” and “tomato”) is a trademark of the Mott’s company which denotes a drink made primarily of reconstituted tomato juice concentrate and reconstituted dried clam broth, with a dash of high fructose corn syrup, and USDA Red 40 to maintain a ‘natural’ tomato colour’. Indeed, in Canada, it is so popular that other companies have tried to rip it off, leading to Cadbury Schweppes Inc. v. FBI Foods Ltd., [1999] 1 S.C.R. 142 a very important case on remedies for breach of confidence.

    Second, it’s not just the SCC that has made important constitutional law in cases arising out of milk arcana. US v Carolene Products 304 U.S. 144 (1938) related to the peculiarities of filled milk (where milk fat is removed from milk [and used for other products, such as ice cream] and replaced with other fats such as coconut oil or palm oil, which sounds vile and is obviously just as much the work of the devil as margerine or clamato). But it gave the US Supreme Court the opportunity to lay the foundations for the modern law on strict scrutiny of discriminatory legislation.

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