A Third Telling

Is the common law meaning of causation under the but-for test now the same in British Columbia as it is in Ontario, or Newfoundland? Or the rest of the common law provinces and territories?

Will the “meaning” of Clements v. Clements, 2012 SCCC 32, adopted in each of the Canadian common law jurisdictions be the same meaning is an “interesting” question.  Well, it is  interesting for some people. It will be interesting for plaintiff-litigants who have a choice of proper jurisdictions within which to sue. It will also be interesting for defendant-litigants who are considering a motion to have an action stayed or dismissed in one Canadian jurisdiction on the basis that another Canadian jurisdiction the proper, or the better, forum. It might also be interesting for judges deciding the certification question in a “mass tort” class action where the plaintiffs come from more than one province or territory.

It might not be the same meaning initially.

It might even take another visit to the Supreme Court of Canada to answer that question. Remember that, in the 5-year interregnum between Resurfice Corp  v. Hanke, 2007 1 SCR 333, 2007 SCC 7, the Courts of Appeal of British Columbia (and seemingly Alberta) on one side, and Ontario on the other, did not agree on the meaning of the Resurfice material contribution declarations. In addition, none of these courts ever acknowledged the existence of the other opinions.

Clements now establishes  what Resurfice must be understood to mean so the old dispute about the meaning of Resurfice does not matter.

The other question, then, is whether we will soon have a new dispute extending to the meanings of  both but-for doctrine test and material contribution doctrine.

As ever, it wouldn’t hurt to have a glass or cup of your favourite tipple nearby.

Assume there is no statutory reason why your action cannot succeed. If my negligent conduct is a necessary cause of your injury, is that enough for that conduct to be a but-for cause no matter where in Canada (outside of Quebec) that conduct occurs?

The  law that governs tort claims does not have to be the same in each of Canada’s common law jurisdictions.  Section 92.13 of the Constitution Act, 1867 provides

92.  In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,

13.  Property and Civil Rights in the Province

The law,  then, may be different if a legislature makes it different. The common law – the non-statutory law – can be different, too. As some readers know, it “started” differently in Canada because some of the the common law jurisdictions “inherited” their common law from that place across the water at different times. Thus, the law they inherited was different. The fact that the law of Canada’s  jurisdictions, statutory or otherwise,  may be different is a factor that may be taken into account when a court of one of the jurisdictions deals with the question of whether that jurisdiction is a proper jurisdiction for the action or whether another jurisdiction in Canada is the appropriate (or more appropriate)  jurisdiction.

In Athey v. Leonati[1996] 3 SCR 458 at para. 41.2 – an appeal from the British Columbia Court of Appeal – the Supreme Court of Canada (“SCC”) wrote:

If it was necessary to have both the accidents and the pre-existing back condition for the herniation to occur, then causation is proven, since the herniation would not have occurred but for the accidents. Even if the accidents played a minor role, the defendant would be fully liable because the accidents were still a necessary contributing cause.

[Underlining in original, bold emphasis added.]

In Resurfice Corp. v. Hanke2007 SCC 7, at para. 23 – an appeal from a decision of the Alberta Court of Appeal – the SCC said about the but-for test:

[23]   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. It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327, per Sopinka J.

[Emphasis added.]

It’s my view that that’s not quite what that part of Snell says, but the SCC has the final word on that, too, until it changes its mind or its overruled by a competent legislature. (I use “competent” in its constitutional meaning.)

Athey was eventually adopted as the law of all of the common law jurisdictions by their Courts of Appeal. The Courts of Appeal eventually agreed (somewhat) on that meaning. I won’t rehash what that meaning was. Those of you who are lawyers (or are subject to some other (f)law which makes you interested in tort)  likely have access to a recent enough edition of Lewis Klar’s, Tort Law. The 5th edition has just been published. Prof. Klar’s explanation of what Athey was understood to mean, before Clements, begins at 456. It’s necessary reading for all lawyers, “wannabe” lawyers, and judges. Those of you who need to understand what Clements says about but-for and material contribution would do well to (re)read the entire causation chapter (c. 11) in Klar, Tort Law.

Like me, Prof. Klar was “surprised” that the Supreme Court released the Clements reasons as soon as it did. Tort Law was on the verge of publication. It was too late for him to make any significant changes to the text.

It was also too late for me and my co-author, Russ Brown, to make any changes to the galleys of our pre-SCC decision case comment on Clements which was about to be published. It focused, primarily, on the but-for question, the evidence, and what is involved in the process of inference-drawing –  Russ Brown and David Cheifetz: “The Bounds of ‘Common Sense’ Inferences of Causation: Clements v. Clements and The Art of Motorcycle Factum Maintenance, (2012) 40 Advocates’ Quarterly 139.  (We agree that the dissent was correct in dismissing the action.) While it wasn’t too late for me to junk most of the contents of my LLM thesis – it had been approved a few days before the release of Clements – my supervisor said I did not have to rewrite. I didn’t.

Clements purports to be a clarification of Resurfice. Let’s assume that all of the Courts of Appeal of the common law jurisdictions in Canada have adopted, or if need be would adopt, Resurfice as the law of that jurisdiction. It’s probably a safe guess that that is what will happen with Clements.

That means we don’t have to decide if the mere fact of a Supreme Court of Canada decision on a point of common law in a case which is an appeal from  the Court of Appeal of one jurisdiction necessarily makes that decision the law in each of the common law jurisdictions. Readers familiar (enough) with U.S. constitutional law will know that the decisions of the U.S. Supreme Court in an appeal from a decision of a state on state law are only on the law in the state from which the appeal came.  As I understand that aspect of U.S. constitutional law, the mere fact that the U.S. Supreme Court decides a state law tort issue one way is irrelevant to the validity of the law on that issue in another state. It will be for the supreme courts of the other states to decide what the law in those states is.

That isn’t the case in Canada. It’s generally assumed (by those who need to have an opinion on the issue) that a decision of the Supreme Court of Canada on an a common law issue, in an appeal from a decision from one provincial or territorial court, is thereafter  the law for all of the common law provinces, even if the other provinces or territories had different common law. I admit that I have no recollection of ever reading any case, or article, on this issue. (Feel free to remind me if you know of one.)

I don’t know that sections 3 and 35 of the Supreme Court Act necessarily provide one answer to that question.

That the SCC is the “general court of appeal for Canada” (s. 3) and “shall have and exercise an appellate, civil and criminal jurisdiction within and throughout Canada” (s. 35) doesn’t (for me) answer the question. That the SCC is “an additional court of for the better administration of the laws of Canada” (s. 3) only suggests an answer if one believes that there’s always value in consistency. Noted wags and philosophers sometimes haven’t.

Also, my understanding of that phrase – only because I checked: I didn’t remember –  is that the “laws of Canada” refers only to federal law and statute: see (most recently) Reference re Secession of Quebec[1998] 2 SCR 217 at para. 7

In Clements v. Clements2012 SCC 32 at para 8, the Court said this about the meaning of a but-for. I distinguish the “meaning” a a but-for cause from the from the method by which the existence of such a cause is determined. The bold words are the meaning.

[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 added.]

Clements also repeats the “substantial connection” idea for but-for causation that appeared in Resurfice.  Clements states, in para. 21 as part of its explanation of the meaning of Snell v. Farrell, [1990] 2 SCR 311:

Sopinka J. went on to underline the importance of establishing a substantial connection between the injury and the defendant’s negligence. The usual requirement of proof of “but for” causation should not be relaxed where the result would be to permit plaintiffs to recover in the absence of evidence connecting the defendant’s fault to the plaintiff’s injury. ….

[Emphasis in original]

Now my point.

I’ll set out the summaries of the meaning of but-for in two very recent trial decisions: one from the British Columbia Supreme Court and one from the Ontario Superior Court. Both judges cited Resurfice and Clements. Both held the but-for test applies. I’ll also set out somehting from a relevant pre-Clements decision of the Ontario Court of Appeal and the British Columbia Court of appeal. Decide for yourself whether both trial decsions set out the same meaning of but-for.


Dhaliwal v. Premier Fitness Clubs Inc., 2012 ONSC 4711

  2. The Legal Standard for Causation: The “But For” Test

[54]     Recently, in Clements v. Clements, 2012 SCC 32, the Supreme Court of Canada helpfully restated the law in relation to causation in tort cases. More particularly, McLachlin C.J.C., delivering the judgment of the majority of the Court, reaffirmed the general applicability of the “but for” test for causation. McLachlin C.J.C. noted that, on its own, proof by an injured plaintiff that a defendant was negligent does not render that defendant liable for the loss. The plaintiff must also prove that the defendant’s negligence caused the injury. McLachlin C.J.C. confirmed that the legal test for showing causation is the “but for” test in which the plaintiff must prove, on a balance of probabilities, that “but for” the defendant’s negligence, the plaintiff’s injury would not have occurred. Inherent in the very nature of this causation test, is the requirement that the defendant’s negligence was necessary in bringing about the injury. In other words, the plaintiff must establish that his or her injury would not have occurred without the defendant’s negligence. The resolution of this causation inquiry is a factual inquiry into what likely happened, but it requires the “but for” causation test to be applied pragmatically in a “robust common sense fashion.” The legal burden on the issue of causation remains with the plaintiff. See: Clements v. Clements, at para. 6-14, 46; A.M. Linden and B. Feldthusen, Canadian Tort Law, at pp. 120-132; Snell v. Farrell, [1990] 2 S.C.R. 311, at para. 14-33; Athey v. Leonati, [1996] 3 S.C.R. 458, at para. 13-20; Walker Estate v. York Finch General Hospital,  [2001] 1 S.C.R. 647, at paras. 87-88; Blackwater v. Plint, [2005] 3 S.C.R. 3, at para. 78; Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, at para. 18-23.

[55]     In Clements v. Clements, at para. 13, 46, McLachlin C.J.C. also observed that, exceptionally, a plaintiff may be able to recover by establishing that the defendant’s conduct “materially contributed” to the “risk of the plaintiff’s injury.” This alternative standard will be applied where: (a) the plaintiff has shown that his or her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly responsible for the loss; and (b) the plaintiff, through no fault of their own, is unable to show that any one of the potential tortfeasors was, in fact, the necessary or “but for” cause of the injury, as each defendant can point to the other as the possible “but for” cause of the injury. In such cases, the law, as a matter of policy, refuses to permit the defendants to escape liability by pointing the finger at another wrongdoer. In such circumstances, defendants may be held liable if they materially contributed to the risk of the plaintiff’s injury. See also: Cook v. Lewis, [1951] S.C.R. 830; Snell and Resurfice Corp. v. Hanke, at para. 18-29.

An Ontario Superior Court judge is, of course, bound by the Ontario Court of Appeal.

Ault v. Canada (Attorney General)2011 ONCA 147

[43]      The AGC argues that the trial judge erred in finding that the AGC’s negligent misrepresentations caused the damages she awarded. We disagree.

[44]     The basic test for determining causation in cases of negligence is the “but for” test. The plaintiff bears the burden of showing that “but for” the negligent act or omission of the defendant the injury or harm would not have occurred.

[45]     The “but for” test recognizes that compensation for negligent conduct should only be made where there is a substantial connection between the injury and the defendant’s conduct: Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), [2007] 1 S.C.R. 333, at para. 23. In assessing the issue of “substantial connection”, courts consider whether the damages claimed were a reasonably foreseeable result of the defendant’s negligence. In cases where there is not a substantial connection between the damages and the negligence, the damages are said to be too remote for recovery.

[53]     Finally, the AGC argues that the Loba Parties’ misrepresentations met the “but for” test and that had it not been for those misrepresentations, the plaintiffs would not have left the public service. The fact that Mr. Parent, the principal of Loba, also made misrepresentations to the plaintiffs does not negate the AGC’s liability. The trial judge found that the plaintiffs relied on the AGC’s misrepresentations and that those misrepresentations were a cause of the loss. It is not the law that a particular defendant’s negligent misrepresentation must be the sole cause of the plaintiff’s loss. There can be more than one substantial cause. It is sufficient that the plaintiff relied on the defendant’s statements to his or her detriment: NBD Bank, at para. 78. Indeed, when there is more than one tortious cause, the court may apportion liability among tortfeasors.

[Emphasis added.]

British Columbia

Peragine v. Serena2012 BCSC 1218

 [109]    A plaintiff must prove 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 de minimus range. There is no requirement that causation be proven with scientific precision: Athey v. Leonati,  [1996] 3 S.C.R. 458, at paras. 13-17; Ng v. Sarkaria, 2011 BCSC 1643 at para. 7.

[110] The test for causation is whether, but for the defendant’s negligence, the plaintiff would have suffered the injury. The “but for” test recognized that compensation for negligent conduct should only be made where a substantial connection between the injury and the defendant’s conduct is proven: Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, at paras. 21-23; Clements v. Clements, 2012 SCC 32 at para. 21.

The trial judge in British Columbia is, of course, bound by the British Columbia Court of Appeal so bear this in mind. it will help to explain why the trial judge wrote what he wrote.

Farrant v. Laktin2011 BCCA 336

  [10]      In Resurfice Corp. v. Hanke, 2007 SCC 7, 1 S.C.R. 333, the Supreme Court affirmed the “but for” test remains the basic test for determining causation, but developed the concept of “material contribution” in a different manner than that used in Athey, formulating a “material contribution” test as an exception to the “but for” test, a matter that is not relevant to this appeal. The Court replaced the Athey definition of “material contribution” to the plaintiff’s injury with the concept of “a substantial connection” between the injury and the defendant’s conduct. These developments were usefully summarized by Mr. Justice Smith, writing for the majority, in Sam v. Wilson,  2007 BCCA 622 at para. 109:

“Material contribution”, as that phrase was used in Athey v. Leonati, is synonymous with “substantial connection”, as that phrase was used by McLachlin C.J.C. above in Resurfice Corp. v. Hanke. This causal yardstick should not be confused with the “material contribution test”. As McLachlin C.J.C. explained in Resurfice Corp. v. Hanke, at paras. 24 – 29, the “material contribution test” applies as an exception to the “but for” test of causation when it is impossible for the plaintiff to prove that the defendant’s negligent conduct caused the plaintiff’s injury using the “but for” test, where it is clear that the defendant breached a duty of care owed the plaintiff thereby exposing the plaintiff to an unreasonable risk of injury, and where the plaintiff’s injury falls within the ambit of the risk. …

[11]     Thus, in applying the “but for” test, the trial judge was required to consider not just whether the defendant’s conduct was the sole cause of the plaintiff’s disabling pain, but also whether the plaintiff had established a substantial connection between the accident and that pain, beyond the de minimus level.

[Emphasis added]

Maybe there will be a Dolphin Delivery of a consistent answer. Or maybe not. When in Rome, etc., or in this case, pick a jurisdiction in Canada.

While all of this is going on, have some sympathy for those in the profession whose practices include statutory areas where monetary awards are made for health issues said to be caused by a qualifying event. Workers’ compensation is one such area. Motor vehicle accident benefits regimes are another. It’s my understanding that those regimes, across Canada, adopted the meaning of what was understood to be the Athey material contribution to injury test as the correct interpretation of the statutory provisions setting out when a qualifying event will be treated as a cause of the injury or condition for which payment is claimed. Clements seems to assert that that view of Athey’s material contribution test was never correct. Fortunately, that doesn’t matter since the issue was, and will always be, the correct interpretation of the governing statute and regulations. So, if it is the case that what was understood to be the meaning of Athey material contribution happened to be the correct interpretation, then it doesn’t matter if Athey never said that (assuming it didn’t.)

As for the public weal? Somebody has to pay for all of this, no? Bread and cake aren’t (usually) free.

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