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, avoiding the fate of the giant 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 enough followers that Cheifetz will be able to make historically accurate decimation jokes.


August 23, 2015

More adventuring with scholars, philosophers, and me

The truth about factual causation issues in most personal injury actions is that, where there’s any issue at all, it’s not one that involves difficult questions of law or any need to venture into realms of philosophy or metaphysics, abstract, concrete or something else. Instead, the issue is whether the evidence is enough to establish that the alleged negligence was a sufficient legal cause of the injury. The evidence may be complicated. The decision may require the trier-of-fact, judge or jury, to make difficult choices, such as who to believe or what conflicting evidence to accept or reject. In the not-trite aphorism that lawyers involved in the dispute resolution portion of the legal system soon learn, the law in a particular case is clear. What isn’t clear is how to apply the law to the facts.

I’m going to mention a 4 articles published in the last 3 years which should interest members of the legal profession, and others, who, for whatever reason, are interested the subject of causation in negligence. These articles may help to clarify, for some readers, some of the murkiness in the current state of Canadian common law case-law governing proof of factual causation in negligence actions.

Don’t worry, I’m not the author of any of them. That means the articles are short enough for convenient reading. Three of the articles are by leading academic lawyers. The fourth is by a lawyer with experience in the Canadian civil litigation, medical malpractice, trenches.

The articles are:

Jane Stapleton, “Unnecessary Causes” (2013)  129 LQR 39.

René Brewer, “The End of Material Contribution to Injury (2013) 42 Adv Q 217.

Jane Stapleton, “An ‘Extended But-For’ Test for the Causal Relation in the Law of Obligations” (2015) Oxford Journal of Legal Studies.

Oxford J Legal Studies (2015)
doi: 10.1093/ojls/gqv005
First published online: March 7, 2015

Ernest Weinrib “Causal Uncertainty” (2015) Oxford Journal of Legal Studies.

Oxford J Legal Studies (2015)
doi: 10.1093/ojls/gqv020
First published online: July 2, 2015

Unless you know somebody, the last 2 are currently available online, only.

I discuss these articles, and their significance to Canadian jurisprudence, after the break. Most of the discussion deals with Professor Weinrib’s article.

Warning: the entire post is about 6,400 words according to Word, but the wording counting tool in the version of Word I’m using counts parts of citations as words, so there’s a bit less than that.

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The judgment is probably correct in result, but …

Regular enough readers of this blog know that I tend to harp on the judicial obligation to set out the applicable law correctly.

Some readers of this blog who still remember their university days may remember finding out that it wasn’t enough to get to the seemingly correct answer.  You had to explain, correctly, how you got that answer. You might, depending on what the mistake was, still get a passing grade on the question; however, you might not.

However, lawyers who are in practice soon learn, if they didn’t at law school, the ultimate rule: appeals are from the result – the judgment – not the reasons for judgment. There is no miscarriage of justice if it is sufficiently clear (whatever sufficiently means in the particular case) that the error in issue did not make a difference; that the result is the result required on the facts. The Supreme Court of Canada wrote in R. v. Sheppard, [2002] 1 SCR 869, 2002 SCC 26:

[4]       The appellant Crown contends that “[i]t has been a settled principle of Canadian law that a trial judge does not have to give reasons” (factum, at para. 13 (emphasis in original)).  This proposition is so excessively broad as to be erroneous.  It is true that there is no general duty, viewed in the abstract and divorced from the circumstances of the particular case, to provide reasons “when the finding is otherwise supportable on the evidence or where the basis of the finding is apparent from the circumstances” (R. v. Barrett,  [1995] 1 S.C.R. 752, at p. 753).  An appeal lies from the judgment, not the reasons for judgmentNevertheless, reasons fulfill an important function in the trial process and, as will be seen, where that function goes unperformed, the judgment itself may be vulnerable to be reversed on appeal.

[5]        At the broadest level of accountability, the giving of reasoned judgments is central to the legitimacy of judicial institutions in the eyes of the public.  Decisions on individual cases are neither submitted to nor blessed at the ballot box.  The courts attract public support or criticism at least in part by the quality of their reasons.  If unexpressed, the judged are prevented from judging the judges.  The question before us is how this broad principle of governance translates into specific rules of appellate review.

[33]  The appellant relies on this statement as establishing a simple rule that trial judges are under no duty to give reasons, but it seems to me, on the contrary, that this Court did expect trial judges to state more than the result.  McLachlin J. anticipated at least “their conclusions” on the main issues (though perhaps not “collateral” issues) at least “in brief compass”.  Further, as pointed out by O’Neill J.A. in the court below, the observations in Burnswere substantially qualified by the use of the words “all”, “general”, “merely”, “all aspects”, “in itself”, “every aspect”, “in brief compass”, and “collateral aspects”.  What was said in Burns, it seems to me, was that the effort to establish the absence or inadequacy of reasons as a freestanding ground of appeal should be rejected.  A more contextual approach is required.  The appellant must show not only that there is a deficiency in the reasons, but that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in a criminal case.

[Emphasis added in para 4; underlining emphasis added in para. 33; other emphasis in original in para. 33.]

R. v. Sheppard applies in at least some areas of private law, includes claims for damages in tort and contract: see Cojocaru v. British Columbia Women’s Hospital and Health Centre, [2013] 2 SCR 357, 2013 SCC 30Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 SCR 129, 2007 SCC 41 at paras. 100-101; and, at the provincial appellate level, including: Bunan v. Toronto-Dominion Bank, 2015 ONCA 226 at para. 20 (” … the test on appeal is whether any deficiency in the reasons has occasioned prejudice to the exercise of [the appellant’s] legal right to an appeal” [internal quotations marks omitted]); Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231, 2015 ONCA 520

[30]      Having concluded that the reasons of the Small Claims Court were facially incapable of appellate review, the Divisional Court was obliged to consider the record before the trial judge to determine if the reasons were more comprehensible when read in the context of this record.

[31]      The level of requisite detail in reasons will be lessened “[w]here the record discloses all that is required to be known to permit appellate review”: Hill v. Hamilton-Wentworth Police Services Board, 2007 SCC 41 (CanLII), [2007] 3 S.C.R. 129, at para. 101. If a detailed record is available, the appellate court should not intervene “simply because it thinks the trial court did a poor job expressing itself”: R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869, at para. 26.

See also Paragon Capital Corporation Ltd. v Morgan, 2014 ABCA 363 at paras. 47-49; Wadden v. BMO Nesbitt Burns, 2015 NSCA 48 at para. 63. This link will take you to a CanLII search result for appellate decisions across Canada over the past year (Sept. 2014 – Sept. 2015). Change the date filter to increase the range.)

Is there at least some inconsistency between the statements in the second and third paragraphs I wrote above? Yes. Welcome to the legal system. It’s called circular breathing: the ability to suck and blow at the same time.

More after the break.

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Did the trial judge mean “necessary”? Probably, but …

Some of you may consider what follows excessive pedantry because you’ve already realized where I’m going and are horse-fanciers and members of an SPCA-type organization whose purview extends to dead animals (or zombies).

In Clements v. Clements, [2012] 2 SCR 181, 2012 SCC 32, the Supreme Court set out the requirements of the but-for test for proof of factual causation in negligence. The Court made it explicitly clear that the test turns on the requirement of “necessity”. The defendant’s negligence must have been necessary for the occurrence of the accident, and ultimately the plaintiff’s injury. Any causal relationship less than necessity will not satisfy the but-for test.

[8]   The test for showing causation is the “but for” test.   The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence.  This is a factual inquiry.  If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.”

(Emphasis in original.)

Everything in Clements after paragraph 8, dealing with the but-for test, explains how the test is to be applied; what the judge or jury is to do in order to decide if the evidence permits the valid conclusion that, on the balance of probability, the negligence was “necessary” . The discussion does not lessen, reduce – choose any synonym you want – the “necessity” requirement.

This isn’t just me on a soapbox.

In Ediger v. Johnston[2013] 2 SCR 98, 2013 SCC 18, the Court summarized the Clements message.

[28]     This Court recently summarized the legal test for causation in Clements v. Clements, 2012 SCC 32 (CanLII), [2012] 2 S.C.R. 181.  Causation is assessed using the “but for” test (Clements, at paras. 8 and 13; Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), [2007] 1 S.C.R. 333, at paras. 21-22). That is, the plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred (Clements, at para. 8).  “Inherent in the phrase ‘but for’ is the requirement that the defendant’s negligence was necessary to bring about the injury — in other words that the injury would not have occurred without the defendant’s negligence”  (para. 8 (emphasis deleted)).

After the break, I discuss I recent case in which I think the trial judge, and the plaintiff’s expert, probably meant there was a necessary relationship between the negligence and the accident, but the trial judge did not explicitly quote or paraphrase paragraph 8 of Clements. The expert’s testimony, as set out in the reasons, also does not necessarily contain any of the magic words or an explicit synonym (word or phrase).

The trial judge’s summary of his conclusion on causation was: “I am satisfied that the defendant’s negligence was a contributing cause of the accident.” (para. 33)

Did the trial judge mean: I am satisfied that the defendant’s negligence was necessary for the occurrence of the accident in the sense that, but-for the negligence of the defendant, the accident would not have occurred.

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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

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.