Don’t Forget The Audience

 because, in the words of Chilliwack, “if there’s no audience there just ain’t no show”.

Who is the audience that has been forgotten?  The Canadian public.

Who is it that is too often forgetting?  Judges.

Given the state of current law on proof of causation in negligence , it is too often the case the only honest, sure, advice we practitioners can give our clients on causation issues, in any case but the most obvious, is: “you pay your money (to us), you take your chances”.

This is a good thing (for practitioners who get paid), no? And for commentators who wish to spill ink. It is clearly not for the Canadian public.

Lawyers, judges, and litigants know the consequences of a finding of causation assuming all of the other requirements of the cause of action are satisfied. The defendant will be held liable to pay some amount of money to the plaintiff. See Snell v. Farrell, [1990] 2 S.C.R. 311 at 326.

Causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former.

Causation isn’t an academic exercise when the issue is raised in court. If the judge or jury cannot find causation, the action is supposed to be dismissed. The plaintiff, even if injured, gets nothing.

A failure to to deal with the causation issue in an adequate manner – whatever adequate means (which is whatever the legal system says it means, nothing more, nothing less)) –  has real consequences to the parties to the litigation.

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