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 avoiding 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 18 followers. Even without If we include Cheifetz, that’s enough for 10 forwards, 6 defence, and 2 goalies. He will now be able to make historically accurate decimation jokes; even defenestration jokes.

4M

(updated Sept, 2013; Oct. 2013; Jan., 2014; Aug. 2014)

Liability under material contribution to risk and liability insurance coverage

Liability insurers, underwriters, and Canadian lawyers representing insurers should take note of  the just released United Kingdom Supreme Court judgment in Zurich Ins v IEG at https://www.supremecourt.uk/cases/docs/uksc-2013-0057-judgment.pdf.

Zurich contains the UKSC’s most recent explanation and summary of the interplay of liability coverage and (common law) liability on the basis of material contribution to risk. The various reasons, which review existing UK case law, should be very relevant in future Canadian cases. The latter are sure to spawn related insurance coverage disputes between insurers and their insureds and between insurers. I’ll leave it at that.

Not a matter of tomayto or tomahto – Causation In Tort III

Because something that’ll occur on May 5, 2015, in Vancouver B.C., may begin to eliminate the problem, I’ll return to a point I’ve made a number of times, on this site, over the past 3 years.

In Clements v. Clements, [2012] 2 SCR 181, 2012 SCC 32 (see para. 8) and then in Ediger v. Johnston, [2013] 2 SCR 98, 2013 SCC 18 (see para. 28), the S.C.C. stated expressly that the causal relationship between negligence and injury described by the but-for test is one of “necessity” established on the balance of probability.  Notwithstanding that, it is still very common – too common – to find statements in reasons for judgment of British Columbia Supreme Court judges which statements, taken at face value, assert a different meaning even when one or both of Clements and Ediger are cited. (Sometimes neither are. Something else, older, is. Really. That’s a different problem.)

I’ve also written that, in at least some of the reported decisions, one can’t tell – or at least I can’t tell – from the text of the reasons what meaning of “but-for” the trial judge applied in deciding that the required causal relationship existed. Perhaps the trial judge did apply the necessity meaning. Perhaps the evidence required that conclusion even if the judge didn’t decide the causation issue that way. However, I’ve suggested that one can’t tell from the reasons. If I’m right, that’s not, all things considered, a “good thing”, even if does create the possibility of more work for lawyers.

I had decided, honouring the “if one can’t say anything good … ” mantra, to stop complaining, at least on this site, about that tendency in reported BCSC reasons. However, I’ve decided that it’s worth mentioning the accurate summary in a very recent Supreme Court of Ontario decision and two more of the erroneous (in my view) summaries in BCSC decisions.

I’m not going to include quotations. I’ll provide hyperlinked citations.

Suwary v Librach, 2015 ONSC 2100 starting at para. 68

Matias v. Lou, 2015 BCSC 544 starting at para. 21

Singh v. Wu, 2015 BCSC 526  starting at para. 78

For those not inclined to clink on links as they read, the something that’ll occur is the Continuing Legal Education Society of British Columbia’s programme Causation in Tort III.

 

Some useful cases on the but-for test

The counterfactual analysis aspect

A case worth reading, because it accurately explains how the but-for counterfactual hypothetical (i.e., possible, what-if, etc., world) analysis is to be done. (For those who have been paying attention, that’s the analysis for a test that we’ve been told isn’t metaphysical at all, which is one reason why we’re to use it rather than go adventuring with philosophers into abstract metaphysics, or something like that.)

Lee v Minister for Correctional Services, [2012] ZACC 30,  2013 (1) SACR 213 (CC) (11 December 2012) starting at para. 37.

As a colleague put it, the court’s explanation is “far better than anything our Supreme Court has ever come up with”.

One case that isn’t helpful on the “how” of the counterfactual analysis – even if, for other reasons, the result of the case is correct: I make no comment on that point – is Eli Lilly and Company v. Apotex Inc., 2014 FC 1254 at paras. 20-35. I believe that, after you read Lee, if you read Lee, you’ll understand why the discussion in Eli Lilly isn’t helpful. And why the explanation is wrong, even if the conclusion is correct.

The how much evidence is enough aspect – i.e., the Snell robust and pragmatic inference

Another case worth reading is St-Germain c. Benhaim, 2014 QCCA 2207 (CanLII) – see the  majority reasons of KASIRER and BÉLANGER, JJ.A (in English).

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