and other tools of note.

Once upon a time, a judge of the US Supreme Court, asked to define the meaning of obscenity for criminal purposes, wrote

It is possible to read the Court’s opinion in Roth v. United States and Alberts v. California, 354 U.S. 476, in a variety of ways. In saying this, I imply no criticism of the Court, which, in those cases, was faced with the task of trying to define what may be indefinable. I have reached the conclusion, which I think is confirmed at least by negative implication in the Court’s decisions since Roth and Alberts, that, under the First and Fourteenth Amendments, criminal laws in this area are constitutionally limited to hard-core pornography. I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description, and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

Potter Stewart J (concurring), Jacobellis v. Ohio, 378 U.S. 184 (1964) [internal footnotes omitted].

Perhaps we’ve now reached that stage – the “we can’t now define it; perhaps we’ll never succeed in intelligibly doing so; but we (‘ll) know it when we see it” stage – in the search for a bright line test that will show when the evidence is enough to allow a valid conclusion that factual causation has been established on the balance of probability. Is there a better explanation than that for this recent statement, even if the trial judge was correct that the evidence was not sufficient?

[243] Moreover, on the issue of causation, the plaintiffs did not lead any evidence to support the proposition that, but for the failure of the MH 2007 Report to state or emphasize what they say should have been stated and emphasized, the events that transpired would have been different. Again, the plaintiffs asked me to infer that the events of 2009 and 2010 would have taken place 2 ½ years earlier, which would be pure speculation. Speculation is not a sufficient basis upon which to prove causation. As was made clear by the Supreme Court of Canada in Resurfice Corp. v. Hanke, 2007 SCC 7 in order to prove causation there must be a “substantial connection” between the alleged injury and the defendant’s conduct:

[21]  First, the basic test for determining causation remains the “but for” test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statute.

[22]  This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati, at para. 14, per Major J., “[t]he general, but not conclusive, test for causation is the ‘but for’ test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant.” Similarly, as I noted in Blackwater v. Plint, at para. 78, “[t]he rules of causation consider generally whether ‘but for’ the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities.”

[23]  The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and 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… [citations omitted]

[244] The plaintiffs’ failure to prove causation is also fatal to their claim in negligence against MH.

 See Kayne v. The Owners, Strata Plan LMS 2374, 2013 BCSC 51 (retrieved on 2013-01-20).

 On the other hand, I thought the law, now, at least in British Columbia, is that it was sufficient that that the evidence show that there is more than a de minimis connection. See Farrant v. Latkin, 2011 BCCA 336 at paras. 10-11:

[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 “asubstantial 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. …

[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.

So we have to understand the trial judge in Kayne to have concluded that the plaintiff’s theory, which he described as speculation, didn’t reach the de minimis threshold.

Whatever that is. See left-handed monkey wrenches and definitions of obscenity.

 Regardless, it’s good to know that others continue the search for the Causative Snark, even if I’ve retired from it. See Cheifetz, “Black Holes, Aether” http://ssrn.com/abstract=2190071 at 173 (“Anybody who tries to make sense of the current state of Canadian jurisprudence on factual causation risks the Baker’s fate.”)