Longer slide set with references and citations.

1. The new reasonable person:
The ordinary and average
Cheryl Stephens
Clarity Conference 2018

2. What is the reasonable person?
Who is the ordinary person?
What are the hidden characteristics?
The new reasonable person:
The ordinary, average

3. Typical use
…a reasonable person would not
expect to lose their right to recover
under an insurance policy where
damage or loss did not result from
their own actions…

4. Use of plain language in agreements
• BC Motor Dealer Regulation
– Every consignment agreement and purchase
agreement must be written in plain language, in
not less than 8 point type, and in a manner
which is easily understood by a reasonable
person.
• Tenancy Agreement Regulation
– ...which is easily read and understood by a
reasonable person...

5. From: Counsel to the President
• The [Trump] Administration has an interest in
you interacting with Covered Organizations
such as Fox News…
• …the need for your services outweighs the
concern that a reasonable person may
question the integrity of the White House
Office’s programs and operations.

6. Would the reasonable person read this?

7. Would the reasonable person read these?

8. The new reasonable person:
The ordinary and average
1. What is the reasonable person?

9. Adolphe Quetelet
• L'homme moyen translates as:
–average man
–common man
–reasonable man
• Documented characteristics statistically
• Discussed motivations when acting in society.
• On Man, and the development of his faculties, 1835

10. First appearances in law
• Vaughan v. Menlove (1837)
– An ordinary, prudent person;
– Not of a particular intelligence or
capacity for judgment
• Blyth v. Company Proprietors of the
Birmingham Water Works (1856)

11. Recent appearance in law
• The court may need to be informed by evidence
of circumstances which bear on… the standard of
the reasonable man in any particular case; but it
is then for the court to determine the outcome,
in those circumstances, of applying that
impersonal standard.
Healthcare at Home Limited v. The Common
Services Agency [2014] UKSC 49

12. Are women reasonable?
• US Supreme Court 2018: Women, like all
humans, are intellectual creatures with the
ability to reason, consider, ponder and
challenge their own ideas and those of others.
• Supreme Court of Canada 1990: the
perspectives of women, which have
historically been ignored, must now equally
inform the ‘objective’ standard of the
reasonable person in relation to self-defence.

13. Thinking, Fast and Slow
Faulty heuristics and cognitive biases or illusions
— shortcuts and rules of thumb by which we
make judgments and predictions.
Known of since 1970s; 2011 bestseller
Thinking, Fast and Slow by Daniel Kahneman
Yet focused training can have an effect, like that
on economists or statisticians (Nisbett)

14. No time to measure the lines,
in real world situations

15. The Supreme Court of Canada says
to be informed means to:
• know rights affecting legal processes
• know which rights apply to what is happening
• understand them
• be able to make informed choices
• be able to use them to take action in what we
each consider our own best interests

16. The new reasonable person:
The ordinary rider
1. What is the reasonable person?
2. Who is ordinary and average?

17. The “reasonable person” often enough
looks and acts most like the person
applying the standard: “perhaps,
unsurprisingly, the reasonable person
often turns out to bear a rather
suspicious similarity to the judge.”
Judicial Bias

19. Cultural competency
• Canada is a multilingual and multicultural
society.
• Lawyers and judges may lack cultural
competency: awareness and knowledge
• As all people do, they have cognitive
biases they are not aware of.

20. Traditional reasonable-person standard
• Does not consider the particular person’s
– reasonableness
– character
– intelligence
• But does consider
– circumstances
– limitations

21. Who is the average reader?
“… the reading circuit is not given to human
beings through a genetic blueprint like vision or
language; it needs an environment to develop.”
“… the present reading brain enables the
development of some of our most important
intellectual and affective processes: internalized
knowledge, analogical reasoning, and inference;
perspective-taking and empathy; critical analysis
and the generation of insight.” (“deep reading”)

22. Who is the average reader?

23. Supreme Court of Canada
• recognizes differences that are disabling because of
external barriers posed by society and its norms,
procedures, and institutions
• discrimination is socially constructed
• aspects of disability:
– physical or mental impairments or illness
– functional limitations, real or perceived
– society’s problematic response to the person’s
condition: prejudice and stereotypes

24. Communication and
problem-solving hurdles
• physical
• emotional
• medical
• psychological
• sociological
• situational

25. The problem with hindsight
• How do we deal with a characteristic or
disability, affecting how objective information
is received and understood and used to make
a decision?
• Cognitive biases exist and may lead to more
effective actions in a given context. They
enable faster decisions when timeliness is
more valuable than accuracy.

26. Correct answers
Original Plain language
40% 95%
Canadian government certificate to register
livestock: 60% could not successfully complete
the government form
Average, reasonable?

27. What is reasonable now?
Complex chronic disease program patients have
• 6 or more diagnoses,
• many medications,
• disabling fatigue,
• difficulty thinking and remembering, and
• severe pain.
Dr. Alison Bested, former medical director of the
Complex Chronic Disease Program

28. 1. What is the reasonable person?
2. Who is average and ordinary?
3. What are the hidden characteristics?
The new reasonable person:
The ordinary rider

29. New reasonable person
• Typical
• Ordinary
• Reasonable
– In similar circumstances
– under the same limitations
• Disabled defendant
– standard of reasonable person
– with same disability or limitation

30. Quetelet’s mean as personas
Persona 1
• Man
• Head injury
• PSTD
Persona 3
• Woman
• Illiterate
• Alcoholic
• Suffered
childhood
abuse
Persona 2
• Gender non-
conforming
• Dyslexic
• Senior

31. Hidden characteristics

32. Literacy or cognitive challenges
• Low education
• Medical conditions
• Age
• Disabilities
• Learning difficulties
• Poverty
• Personal and social stresses

33. Ontario disability definition
• Condition of mental impairment or a
developmental disability
• Learning disability
• Dysfunction in one or more of the
processes involved in understanding or
using symbols or spoken language

34. Common challenges
• Learning disability
• Dyslexia
• Visual impairment
• Low vision – 9.3%
• Blind – 8%
• Other visual Impairment – 9.5%
• Impatience/high stress – 22 to 30%
• Medical issue
• Diabetes – 15 to 20%
• Mood disorder (life) – 14%

35. Print disabled
• Blind or visually impaired
• Dysfunctional literacy
• Dyslexic
• Mentally challenged
• Other physical and medical conditions making
it difficult to read printed materials

39. Nature of Complaints Against
Lawyers

40. Reasonable professional person test
Some maintain a custom or practice long after a
better method becomes available.
So, the practitioner may have acted
unreasonably despite following custom or
general practices.

41. The new professional norms
• Plain language communication
• General awareness of communication issues
• Cultural competency