The Fourth Monkey Speaks

monkey_holding1   Welcome to the online home of my friend and colleague David Cheifetz.  He now resides in Vancouver, British Columbia, where he is currently attempting to avoid the fate of the ground sloth.

   Some of the material in some of his posts may sound familiar to some of you. He claims he’s merely recycling (which is good) and not plagiarizing himself  (which is bad) since he has permission.

  For those who care, this blog now has 16 followers. If we include Cheifetz, that’s enough for 3 forwards, 6 defence, and 2 goalies. He will now be able to make historically accurate decimation jokes; even defenestration jokes.


(updated Sept, 2013; October 2013; January, 2014)

What if it had been the gander?

Van v. Howlett, 2014 BCSC 1404 

[138]     The defendants argue that taking a “robust and pragmatic approach” to causation (see Clements v Clements, 2012 SCC 32; [2012] 2 SCR 181), I should find that Ms. Van’s failure to wear a seatbelt did at least worsen her injuries.  If I do not do so, submit the defendants, it effectively prevents the defendant from ever proving contributory negligence in cases of this nature.  I do not agree.  The expertise available to the defendants to assist in investigating causation was no different from that available to the plaintiff in this or any other case of a motor vehicle collision.

[139]     The “robust and pragmatic approach” commended by the Supreme Court of Canada in Clements is not intended to facilitate an end run around the evidence.  The Supreme Court made it clear in that case that the test for causation remains a “but for” test, and I am quite unable to find on the evidence before me that but for her failure to wear a seatbelt, Ms. Van would not have suffered to the same extent or at all the injuries for which she seeks compensation.  On the contrary, I find that her head, facial and rib injuries, and all of their consequences that are relevant to this enquiry, would have occurred in any event due to the unusual mechanics of this accident.  Like the situation considered by the Court of Appeal in Schenker v Scott, , 2014 BCCA 203, “[g]iven the mechanics of this accident and the nature of the injuries suffered, this is not a case where a seatbelt defence could be made out by relying on common sense inferences” (para 43).

[Emphasis added.]

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Spot the non-sequiturs and two almost rights don’t make a right

[289]     A finding that a defendant’s conduct has fallen below the requisite standard of care does not necessarily make that defendant liable for the plaintiff’s injury.  The plaintiff must also prove that the defendant’s substandard conduct caused the injury in respect of which the plaintiff is seeking damages.

[290]     The primary test used in determining causation in negligence is the “but for” test.  The plaintiff bears the onus of proving, on a balance of probabilities, that “but for” the defendant’s negligent act or omission, the injury would not have occurred:  Athey v. Leonati,  [1996] 3 S.C.R.; 458 [Athey]; Blackwater v. Plint, 2005 SCC 58 (CanLII), 2005 SCC 58; Clements v. Clements,  2012 SCC 32 [Clements]; Ediger (Guardian ad litem of) v. Johnston, 2013 SCC 18 (CanLII), 2013 SCC 18 [Ediger].  Inherent in the test is the requirement that the injury would not have happened without the defendant’s negligence:  Clements at para. 8; Ediger at para. 28.

[291]     The plaintiff need not establish that a defendant’s wrongful conduct is the sole cause of his injury.  So long as a substantial connection between the harm and the defendant’s negligence beyond the “de minimus” range is established, the defendant will be fully liable for the harm suffered by a plaintiff, even if other causal factors, which the defendants are not responsible for, were at play in producing that harm: Farrant v. Laktin,  2011 BCCA 336; Athey; Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), 2007 SCC 7 [Resurfice].

Chen v. Ross, 2014 BCSC 374

The answers are on the next screen. Don’t peek.

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Broken record time: who’s the boss, or, why invite an appeal?

Gleizer v. Insurance Corporation of British Columbia, 2014 BCSC 1037

[100]     The plaintiff must establish on a balance of probabilities that the defendant’s negligence caused or materially contributed to an injury. The defendant’s negligence need not be the sole cause of the injury so long as it is part of the cause beyond the range of de minimus. Causation need not be determined by scientific precision:  Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17; Farrant v. Laktin,  2011 BCCA 336 at para. 9.

[101]     The primary test for causation asks: but-for the defendant’s negligence, would the plaintiff have suffered the injury? The “but-for” test recognizes that compensation for negligent conduct should only be made where a substantial connection between the injury and the defendant’s conduct is present: Clements v. Clements,  2012 SCC 32.

[104]     Applying these principles to this case, I must determine whether the MVA caused the plaintiff’s injuries …

[122]     In conclusion, I find that the defendant’s negligence caused or materially contributed to the plaintiff’s … injur[ies] …

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Analogies, Philosophers’ Stones, and Finding the Causative Snark

“Analogy” as defined at

1.  a comparison between one thing and another, typically for the purpose of explanation or clarification: ..

1.3 … Logic a process of arguing from similarity in known respects to similarity in other respects: …

So, tell me again, please:  Why is a raven like a writing desk?

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Factual causation in tort: Necessary reading for Canadian lawyers and jurists

Just published in the 2014 Supreme Court Law Review: Russell Brown, “Cause-in-Fact at the Supreme Court of Canada: Developments in Tort Law in 2012–2013″ (2014) 63 SCLR (2d) 327.

Added June 13, 2014: For those who don’t know, Russell Brown is now Mr. Justice Brown of the Alberta Court of Appeal. 

Added Feb 11/14 June 13, 2014: I’m going to discuss the article in some detail over the next month or two eventually. 

I quote portions of the introduction and the conclusion in the next screen.

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