Consider the position of the trial judge caught between his or her own Court of Appeal and the Supreme Court of Canada.

Litigants are at the mercy of their lawyers and the trial judge, regardless.

Even when the trial judge may well be right. Especially where it seems the trial judge was right.

Olynyk v. Turner, 2012 BCSC 1138 is too good to ignore.

[1]     The plaintiff was involved in a motor vehicle accident on December 15, 2008. Liability is admitted. What remains is an assessment of damages.

[2]     The plaintiff argues that the limitations he now has are a result of the injuries he sustained in the accident and that they remain significantly limiting in spite of his efforts to overcome them. He was employed as a landscaper at the time of the accident and has been unable to return to that work.

[3]     The defendant argues that the plaintiff suffered from a pre-accident condition that was symptomatic at the time of the accident. He argues that some of the plaintiff’s physical limitations are manifestations of that pre-existing condition and not due to the accident. Further, he argues that the plaintiff has not acted reasonably to mitigate his damages. It is said that he failed to follow medical advice regarding weight loss and exercise which, had it been followed, would have reduced the affects of his injuries.

…

[23]     There are two aspects of the plaintiff’s condition which give rise to causation issues. The first relates to the numbness he experiences in his left thigh; the other is the degree to which his present complaints and limitations are the result of a pre-existing condition.

[24]     In Athey v. Leonati,  [1996] 3 S.C.R. 458, Major J. explained the law of causation in civil cases. At para. 13 he wrote that:

[13]   Causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury…

Although the Supreme Court of Canada has revisited the issue of causation since Athey (in, for example, Resurfice Corp. v. Hanke,  2007 SCC 7, [2007] 1 S.C.R. 333, and most recently in Clements v. Clements, 2012 SCC 32), the propositions set out in Athey remain the law and are all the law that need be considered in the circumstances of this case.

[25]    According to both Dr. Laidlow and Dr. Coghlan, the numbness in the plaintiff’s left thigh is due to an impingement or entrapment of a small nerve in the upper thigh, a condition that is likely the result of weight gain. The plaintiff argues that his weight gain is the result of his inability to carry on with his physically demanding landscaping job which is, in turn, the result of the injuries he sustained in the motor vehicle accident. While this condition may be indirectly factually due to the accident, I am not satisfied that the accident is the legal cause of it.

[26]    The plaintiff has struggled with controlling his weight most of his life. … Since the motor vehicle accident, he has been repeatedly advised of the importance of losing weight … He has not done that. … For present purposes, I simply note that to the extent his left thigh numbness is the result of weight gain, that weight gain is the result of Mr. Olynyk’s failure to meet the positive duty he has to take reasonable steps to mitigate his losses.

…

[39]    While I understand how Dr. Coghlan reached the conclusion he did, based on Dr. Bobyn’s explanations as to his notes and the inferences he drew from them and Mr. Olynyk’s own evidence, I am satisfied that it is more likely than not that Mr. Olynyk experienced pain in his low back within days of the accident and that the pain grew over time. The accident involved significant force. Nothing happened following the accident which would otherwise explain Mr. Olynyk’s symptoms. I am satisfied that his low back pain and the pain in his right buttock and leg is caused by the accident.

[Emphasis added in para. 39]

Para. 24 is all the trial judge formally said about the law that he’d apply.

He did not set out which propositions “set out in Athey remain the law and are all the law that need be considered”. (It should be safe to assume to assume it’s not para. 15 of Athey  which is, in part: “The ‘but for’ test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury: Myers v. Peel County Board of Education, [1981] 2 S.C.R. 21 …)

On the whole,  it’s a safe guess that everything in Athey that isn’t inconsistent with Clements, or anything the Supreme Court has said since Athey, is still good law. But, on the whole, if the Supreme Court of Canada won’t clarify, and his own Court of Appeal seems to be at odds with the Supreme Court, then why go where he doesn’t have to?

Old maps, apocryphally,  might have had “there be monsters”. New maps have appellate judges.

And commentators.

Trial judges are also presumed to know the law they use on daily basis. Binnie J. (dissenting) wrote in R v. O’Brien, 2011 SCC 29 at para. 23, [2011] 2 SCR 485:  “Trial judges may be presumed to know the law but occasionally they misapply it. Otherwise, there would be no need for appellate courts.” But, he added at  para. 41:

However, the argument that important deficiencies in trial reasons can be excused on the basis that trial judges are presumed to know the law was rejected as a general one-size-fits-all excuse in R. v. Sheppard,  2002 SCC 26, [2002] 1 S.C.R. 869, and should be rejected here as well.

Binnie J. had said in R. v. Sheppard at para. 24

In my opinion, the requirement of reasons is tied to their purpose and the purpose varies with the context. At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be.

The Ontario Court of Appeal said in Smyth v. Waterfall (2000), 50 O.R. (3d) 557 at para. 13, 2000 CanLII 16880 – I’m sure there are similar cases from the other provinces or territories: Smyth is the case I recall: the“failure to provide a reasoned decision tends to undermine confidence in the administration of justice as the absence of reasons may give the appearance of an arbitrary decision.”

So, the trial judge in Olynyk didn’t have to set out all the law, just the law what mattered to his conclusion. Just enough so that his reasons justified and explained his conclusion. Just enough to comply with the requirements set out in R. v. Sheppard.

Should you decide to read the Olynyk reasons,you’ll see the trial judge didn’t formally set out which test for factual causation he’d use (or used) to take him from the evidence to his conclusion(s). The trial judge didn’t say he was using “the but-for test”.  But, then, he didn’t have to given Clements since there’s only one tortfeasor. That means it could only be the but-for test. See Clements, para. 46. The trial judge didn’t mention Snell v. Farell, [1990] 2 S.C.R. 311.  At all. There’s no mention of the robust, pragmatic common sense approach to the use of the but-for test mandated by Clements. Of course, he didn’t have to because he accepted one side’s (expert) evidence on the causation issue.

I emphasize: I am not suggesting that the trial judge was in any sense mistaken as to what the applicable law now is. It seems that  he had a good handle in what the law was supposed to have been, at least as it was before Clements. Start at para. 70 of his reasons in another case. Reading between the lines, he has a good handle on what it probably is, now, too.

So, the trial judge didn’t have to deal with the SCC’s implicit overruling, in Clements, of British Columbia Court of Appeal law that the Snell explanation of how but the but-for test is to be applied doesn’t apply where expert evidence was called by both sides.  He didn’t have to call out his own Court of Appeal – which might or might not matter to him –  where the Supreme Court hadn’t, at least explicitly, on a proposition was affirmed by the British Columbia Court of Appeal in Ediger v. Johnston, 2011 BCCA 253, leave to appeal granted 2012 CanLII 8362 (SCC). (The appeal is scheduled to be heard in December 2012.)

[84]    This court confirmed in Moore v. Castlegar & District Hospital (1998), 49 B.C.L.R. (3d) 100 (C.A.) that “where both parties have led expert evidence on the issues of causation, it is not open to this court to apply the ‘common sense’ reasoning urged in Snell” (para. 11).

The SCC’s summary of the issues includes

Whether, under principles described in Snell v. Farrell, [1990] 2 S.C.R. 311, it is open for a trier of fact to find causation by drawing an inference based on all the evidence led at trial, notwithstanding the fact that the defence has led some evidence to the contrary

Ediger didn’t refer to K.L.B. v. British Columbia, 2003 SCC 51 at para. 13, [2003] 2 SCR 403:

[13] …  As in other areas of negligence law, judges should assess causation using what Sopinka J., citing Lord Bridge in Wilsher v. Essex Area Health Authority, [1988] 2 W.L.R. 557 (H.L.), at p. 569, referred to as a “robust and pragmatic approach” (Snell v. Farrell, [1990] 2 S.C.R. 311, at p. 330). As Sopinka J. emphasized, “[c]ausation need not be determined [with] scientific precision” (Snell, at p. 328). A common sense approach sensitive to the realities of the situation suffices.

K.LB. can’t be said to be obiter on the issue  of any restrictions on the use of the common sense approach even where expert evidence is called, even though the point wasn’t discussed by the Supreme Court, or in the trial or appeal reasons. At trial, both sides called expert evidence on the causal connection between the wrongdoing and the injuries and damages.

The trial judge in Olynyk also didn’t also didn’t use the phrases “materially contribute” or “substantial connection” or any variation. He didn’t refer to any of the BCCA law after Resurfice and before Clements stating that a but-for cause exists where there is a “substantial connection” between the  negligence and the injury.  See, for example, Farrant v. Latkin, 2011 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. …

[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.

Ediger is consistent with Farrant on the “substantial connection” point. Ediger states

[80]     … The “but for” test of causation required the [plaintiff] to establish, on a balance of probabilities, a substantial connection between …  the [defendant’s] negligent acts …  and the resulting injuries ….

So, in Olynyk, did the trial judge decide there was or there wasn’t a substantial connection? Justice Barrow undoubtedly knows the decisions of his own Court of Appeal.

The first underlined sentence in para. 39 of the Olynyk reasons could be understood as referring only to the standard of proof, not the test for factual causation.  But, the second underlined sentence amounts to an orthodox but-for conclusion.

The trial judge wrote “but for” twice, later, at paras. 77 and 118, but that was in the context of discussing the damages assessment.

First, referring to the basis of the damages award in a prior BCSC decision in order to distinguish it]

[77] … there was no measurable risk that those conditions would have detrimentally affected him but for the accident.

Later, to explain why he was making a particular award:

[118] …  Finally, I consider that a gym membership is reasonably required to allow Mr. Olynyk to maintain his weight and fitness, things he would have but for the accident, done through his employment.

In this case, the judicial finger wrote rather than pointed, and having written moved on.

The question is which finger.

Some might say that Mr. Justice Barrow’s reasons aren’t explicit enough. I’d say “Kudos to Justice Barrow”.

At least, I’d say that if I were a lawyer being paid to handle one side or the other on the appeal.

As to the result of that case? The result matters, right? Somebody should pay attention to the result in deciding whether to appeal, right? If the evidence is as Justice Barrow outlined it, his decision is unimpeachable. That makes it right, right?