Who’s the Boss

[Originally posted on Slaw.ca on September 7, 2012]

A very witty Master of the Alberta Supreme Court once wrote:

[51] Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder.

[52] I am bound by decisions of Queen’s Bench judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada. Very simply, Masters in Chambers of a superior trial court occupy the bottom rung of the superior courts judicial ladder.

[53] I do not overrule decisions of a judge of this court. The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.

South Side Woodwork v. R.C. Contracting (1989), 95 AR 161, 1989 CanLII 3384 (AB QB, Master)

Whence the title of this posting.

Once upon a time, not so long ago –  in late June 2012 as it happens – the Supreme Court of Canada spoke.

Clements v. Clements2012 SCC 32

[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.

[9]      The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury. See … Snell v. Farrell …

[10]     A common sense inference of “but for” causation from proof of negligence usually flows without difficulty. Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss. See Snell and Atheyv. Leonati …

[11]     Where “but for” causation is established by inference only, it is open to the defendant to argue or call evidence that the accident would have happened without the defendant’s negligence, i.e. that the negligence was not a necessary cause of the injury, which was, in any event, inevitable. As Sopinka J. put it in Snell, at p. 330: ….

[46]    The foregoing discussion leads me to the following conclusions as to the present state of the law in Canada:

(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.

Not quite so long ago, a judge lower down the the legal ladder spoke.

A British Columbia Supreme Court trial judge on Aug. 31, 2012

McArthur v. Hudson2012 BCSC 1293 (CanLII) “[8]    Notwithstanding the recent review of the principles of causation by the Supreme Court of Canada in Clements v. Clements, 2012 SCC 32 (CanLII), 2012 SCC 32, the fundamental principles remain the same.”

The trial judge then set out what she believed those principles to be – both for causation and damages assessment, quoting the the but-for causation principles from a recent law review article predating Clements – it’s a very good, very right, article for what she quoted – but not Clements, and the damages assessment principles from the appropriate cases.

The trial judge applied the but-for test. That much is undoubtedly correct if the evidence is as she outlined.

But the trial judge never mentioned Snell.

The trial judge never mentioned what Clements says is the manner in which the but-for test is to be applied.

The plaintiff got very little of what the plaintiff sought.

[6]      The plaintiff claims against the defendant under all heads of damages for his personal injuries, in the total sum of $739,664. The defendant vehemently opposes all damage awards except a modest sum of $25,000 for non-pecuniary damages.

[7]     The reason for this significant discrepancy between the positions of the two parties lies in the unfortunate nature of the plaintiff’s complex medical condition. Simply put, the defendant says that the plaintiff’s damages stem almost entirely from his pre-accident state of poor health and disability, while the plaintiff says but for the accident he would have recuperated from his prior medical problems, returned to work, avoided his dependency on analgesics, resolved his financial issues and cured his depression.

[97]     The plaintiff has not made out a claim on the evidence for more than $40,000 non-pecuniary damages and $4,000 special costs, for a total of $44,000. The plaintiff is entitled to judgment for that amount, but the rest of the plaintiff’s claim is dismissed.

The trial judge, clearly, didn’t believe the plaintiff;  didn’t accept the plaintiff’s evidence; preferred the defence evidence; preferred the defence doctors.

That’s the trial judge’s job. To decide. To prefer. To make decisions. And to do all of this properly.

Perhaps the trial judge was right on the evidence.

Perhaps the trial judge did apply the but-for test in a robust, pragmatic, common sense manner to arrive at the  the conclusions she did. But she didn’t say.

If the evidence is as the judge recounts, and it is evidence she was entitled to accept, then her decision is valid and untouchable. It is a decision the trial judge was entitled to make. There is no palpable and overriding error.

But one can assume the plaintiff doesn’t think that’s so.

And one can assume that plaintiffs’ counsel was hoping for a larger recovery, too. (The trial took 7 days. Whatever costs, if any, the plaintiff is entitled to probably won’t match the lawyer’s account, if there is one.)

And, on the face of the reasons, one doesn’t know whether the judge  applied the but-for test as Clements says it is to be applied.

So, to that extent, the trial judge didn’t do her job properly.

And there’s a ground of appeal on the face of the reasons. (Lawyers and judges need more work, right?)

But appeals, of course, are supposed to be from the evidence and the judgment, not the reasons.

But an outsider (i.e., the public and the B.C. Court of Appeal) will need the transcript to know if the evidence supports what the judge says.

Perhaps the trial judge agreed with Clements. Perhaps she did not.

But, she’s not the boss.

Her obligation is to apply Clements as she understands it.

One might say she did. After all, she wrote that the fundamental principles remain the same notwithstanding Clements. So, that’s her understanding.

Yet, she didn’t mention Clements‘ key point about the manner in which the but-for test is to be applied. So one might conclude that her understanding of the fundamental manner in which the but-for test is to be applied is wrong – particularly  since it is B.C. law  (unless Clements changed that) that the robust and pragmatic common sense approach is not to be used where both sides call expert evidence. See Ediger v. Johnston, 2011 BCCA 253 at para. 84 (leave to appeal granted, 2012 CanLII 8362; appeal to be argued in December 2012). There’s no doubt the trial judge knows that. But Ediger and this rule isn’t mentioned, either.

Is that what trial judge did? Not apply the robust, pragmatic common sense approach because expert evidence was applied. I can’t tell. (That could be because I think the robust, pragmatic, common sense approach has all the substance of the  the Emperor’s new gown, so I see what I expect to see: nothing.)

So how is the plaintiff to know that the judge did apply the law as she was supposed to?

Or, cutting to the chase: why invite an appeal?

Solely in my capacity as a lawyer retained by insurers to defend appeals of this sort, I shouldn’t have qualms about mistakes of that sort, right? The more the merrier.

But that’s not what ought to be the rule, right?

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