BLACK HOLES, AETHER, AND NEGLIGENCE IN THE AIR

CAUSATION IN NEGLIGENCE IN CANADA AFTER CLEMENTS

is the title to my next (and likely last) piece of any significance on factual causation in Canadian tort law. I’ve just begun to reread the last draft for typographical errors, syntax problems, clarity, style,  and anything else that needs to be fixed before it’s finished. When that’s done, the piece will be posted on SSRN. That will happen later this month. The paper “weighs” in at a mere (approximately) 65,000 words without footnotes, 95,000 words including footnotes. I’m going to post excerpts from the paper over the balance of this month.  The Table of Contents will be posted as a fixed page that you can reach by clicking, here, or on the link at the top right under the Pages heading.

Once upon a time, a judge wrote, about an earlier piece I’d written, that it was

“a complete, if not overly analytical, attempt to reconcile the traditional “but-for” approach, with the newer (and some say alternative) “material contribution” approach, applied in the rare circumstances when the “but-for” analysis is not “workable”.

See Whey v. Halifax (Regional Municipality), 2005 NSSC 348 at para. 12. The reference is to my article “Snell Inference And Material Contribution: Defining The Indefinable And Hunting The Causative Snark – A Not Excessively Subtle and Theoretical Examination of Proof of Factual Causation in Canadian Tort Law” (2005) 30 Adv. Q. 1.

I’ve sometimes called that the search for the “f” in actual causation. Say that quickly. Just not in court.

I’m still not sure what the trial judge meant by “overly analytical”. Perhaps what he meant was that, if factual causation is, at its core, “common sense”, then there’s no useful way to analyze that meaning since “common sense” has no definite meaning.

“Snark” was not subtle. It was theoretical only in the sense that I attempted to make a silk purse out of the sow’s ear that was – even then – a sow’s ear, and put some lipstick on the pig, by creating a reading of the leading Supreme Court of Canada cases on factual causation in tort (through 2005) that made them consistent; or, at least more consistent. I wrote (at 8):

There should be no misunderstanding about my view of my analysis. I have created a coherent reading. I have not revealed a reading that is necessarily implicit in the cases.

The cases weren’t consistent then. They’re still not. The “material contribution” portion of “Snark” is now moot because it was premised on the now (apparently) mistaken assumption that this much (if little else) was certain about what became known as the Athey material contribution test for factual causation in tort. It was a method of establishing actual factual causation of the injury, by the negligence of the defendant, on the balance of probability.

“Black Holes, Aether” is less subtle (title aside) but it’s more complete. It’s also analytical; probably more. I’ll leave the decision about “overly” to others. I’ll do no more than suggest that the table of contents shows why analysis is necessary. Perhaps it’s longer than most litigators prefer for their toilet reading. On the other hand, it’s shorter than “War and Peace” and doesn’t have to be read from beginning to end, contiguously. Though that wouldn’t hurt.

“Snark” has this passage at 102 (footnotes omitted):

In Carroll’s Alice in Wonderland, the Mad Hatter asks Alice: “why is a raven like a writing desk?”None of Alice, the March Hare, the Dormouse and the Mad Hatter answered the riddle. Famous literary figures have offered answers. Aldous Huxley wrote that it is because “there is a b in both and because there is an n in neither”. In the same vein, one member of a group of lawyers, judges, and law professors at some continuing education gathering involved in a discussion of the intricacies of adequately proving legal cause might ask another “Why is proving legal cause like a bestiary?” and receive equally meaningful answers. A cynical lawyer in private practice might answer: “because there is no y in either but there is a y in money.”

Nothing has changed, other than the meaning of some portions of the law, since I wrote that passage. That’s not surprising. After all, as the late Justice Sopinka reminded us in Snell v. Farrell:  “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.”