(I’ll eventually repost it, here.)
July 10 – reposted.
Q: How many Canadian judges does it take to create a paradox?
A: 9 Supreme Court of Canada judges paying insufficient attention to the inconsistent text of their reasons for judgment and 1 trial judge applying a portion of those reasons literally.
(1) the but-for test is currently the ONLY test in Canadian tort law for proof of factual causation;
(2) the ONLY method of applying the but-for test is the method set out in Snell: the robust, pragmatic, approach;
(3) the robust pragmatic method isn’t applicable “when there is evidence to the contrary on the plaintiff’s theory of causation”;
(4) in practice, what is the test for factual causation in every case in tort where there is some evidence contrary to the plaintiff’s theory if it is not the but-for test and cannot be the material contribution test?
In practice, there is always going to be some evidence to the contrary, no matter how weak, in every case where causation is in issue.
The trial judge wrote in Gallant v David Thompson Regional Health Authority No. 6 (Red Deer Regional Hospital Centre), 2013 ABQB 34 at para. 234:
 In my view, this is not a case where an inference of causation can be drawn. The “robust and pragmatic” approach adopted in Snell, and recently reaffirmed in Ediger, is not available when there is evidence to the contrary on the plaintiff’s theory of causation. The Plaintiffs have not established a theory of causation, and furthermore, if they had, I find there is evidence to the contrary in this case.
The irony of claiming that the SCC’s decisions in Ediger and Clements require this approach is that Ediger rejected a version of that view: the B.C. rule that the robust, pragmatic approach mandated by Snell is not applicable where expert evidence is adduced. Unfortunately, one has to know that that was what had happened in Ediger at the BCCA as it is not mentioned in the SCC’s Ediger reasons.
In any event, the trial judge’s statement of her understanding of the SCC’s decision appears in paragraphs 116-127 of Gallant. You won’t, though, see any version the claim in para. 234, here. In fact, the trial judge doesn’t refer to, or quote, the paragraph inClements – it’s para. 11: I’ve linked to it – which, taken out of context and read literally, literally does make the assertion in para. 234 of Gallant. The trial judge summarizedClements on the but-for test this way, at para. 120:
 The Court clarified that the law of negligence does not require scientific proof of causation. However, the “but for” causation test should be applied in a robust, pragmatic and common sense fashion. As a general rule, the plaintiff must show that she would not have suffered the loss “but for” the negligent acts of the defendant. The Court stated that 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” (para 10).
Yet, somehow, the trial judge overlooked the explicit first sentence in para. 9 ofClements: “The ‘but for’ causation test must be applied in a robust common sense fashion.” The Court repeated that proposition in the summary at para. 46(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.
Clements makes no exceptions in how the but-for test is to be applied where it is applicable; neither does Ediger: see paras. 28 and 29 which the trial judge inGallant didn’t refer to. She quoted para. 36 of Ediger at para. 126 of the Gallantreasons. Whatever the SCC meant by para. 36 – it’s a paraphrase of the concepts inSnell , it isn’t support for the trial judge’s conclusion.
What’s a possible explanation for this mess? In part, it seems to be the trial judge’s belief that, somehow, there is a difference in the principles to be applied where the causation decision is based on “circumstantial evidence” rather than “direct evidence”. See para. 125. The trial judge didn’t explain her understanding of the relevant difference.
Here’s another irony. We have to conclude that the trial judge understood Ediger as the authority for her view of the law. However, if one pays enough attention to what the SCC wrote in Ediger at para. 36 – the paragraph the trial judge quoted – we find an explicit statement contradicting the trial judge’s view.
The trier of fact may, upon weighing the evidence, draw an inference against a defendant who does not introduce sufficient evidence contrary to that which supports the plaintiff’s theory of causation. In determining whether the defendant has introduced sufficient evidence, the trier of fact should take into account the relative position of each party to adduce evidence.
Let’s return to irony, the paradox and the koan. If we take the trial judge’s statement in para. 234 – I set it out again – in its context:
 I find no reason to deviate from the standard “but for” test for causation.On the evidence before me I find that the Plaintiffs have not proven on a balance of probabilities that “but for” Dr. Farries’ alleged breach of the standard of care, Shawn would have suffered injuries.
 In my view, this is not a case where an inference of causation can be drawn. The “robust and pragmatic” approach adopted in Snell, and recently reaffirmed in Ediger, is not available when there is evidence to the contraryon the plaintiff’s theory of causation. The Plaintiffs have not established a theory of causation, and furthermore, if they had, I find there is evidence to the contrary in this case.
 There is no expert evidence that persuades me in any way, that a hypoxic or anoxic event occurred, or that Shawn’s injuries are a result of such an event. Further, the Plaintiffs failed to adduce the necessary evidence, either circumstantial or direct, capable of supporting such a theory. This is not a case where no other evidence was available and further evidence may have been obtained through the testimony of Dr. Nye, the nurses and the respiratory technician who were present in the operating and recovery rooms. There is absolutely no evidence, expert or otherwise, to establish that an anoxic or hypoxic event or any other type of event occurred, or that establishes that any changes in Shawn’s physical or mental state were caused by Dr. Farries’ actions.
for what it says, and if we also take Clements at its word, the trial judge did not apply the but-for test properly although she was correct in concluding that it applied. Or, if the trial judge is correct about when the but-for test does not apply, then she was wrong in applying it at all.
But, then, what test should she have applied? The material contribution test? If so, doesn’t that make the default test, in practice, the (new) version of material contribution? That’s contrary to both Clements and Resurfice The trial judge also referred to Resurfice in setting out her understanding of the relevant law. Informed readers may recall that the reason the Supreme Court gave, in Resurfice, for rejecting the Alberta Court of Appeal’s view of the meaning of the Athey material contribution test was:
To accept this conclusion is to do away with the “but for” test altogether, given that there is more than one potential cause in virtually all litigated cases of negligence. If the Court of Appeal’s reasons in this regard are endorsed, the only conclusion that could be drawn is that the default test for cause-in-fact is now the material contribution test.
See Resurfice at para. 19. Paraphrase this for Gallant. Then say “Oops”.
Yet another irony is that Mr. Justice Russell Brown is a recent appointment to the Alberta Queens Bench. He, better than anybody else in Canada, has recently written 3 readily accessible articles which explain why the trial judge’s view of the significance of direct and circumstantial evidence is wrong. Two of the articles – the 2 most directed at practitioners – appear in leading Canadian journals.
Is the trial judge’s conclusion on liability correct regardless of the misstatements of law? The plaintiff’s action – a medical malpractice claim – was dismissed both on the basis of no breach of the standard and no causation. The nature of the injury is summarized at paras. 114-115 of the Gallant reasons. Did the trial judge misunderstanding of the law affect her conclusions on causation? The trial took 11 days over one year. How can that decision be made without reviewing all of the evidence?
Readers who follow this blog, or my own blog, know that I’ve complained about the inadequacies of Clements. I am going to end with an “I told you so” and an admission. I wrote, in “Factual Causation in Negligence After Clements“, 2013 41 Adv Q 179 thatClements would create problems in but-for jurisprudence. I discussed, at 340-47, some of the problems that might be created by the “where ‘but for’ causation is established by inference, only” statement in para. 11 of Clements. I suggested that that passage had been clarified (somewhat) in Ediger. However, I somehow forgot to assume that any trial judge, especially one not in British Columbia, would, in the face of both Clementsand Ediger, recreate the erroneous BC limitation on the use of the Snell and make it even broader.
I’ve used the Zen Buddhist meaning of koan: ” a problem or riddle that admits no logical solution”. See http://dictionary.reference.com/browse/Koan?s=t. Of course, this isn’t necessarily a problem for the common law if a logical solution isn’t always a necessity. On that point, see ITO-Int’l Terminal Operators v. Miida Electronics,  1 SCR 752 at 788, 1986 CanLII 91: “In fact it may be said that one of the virtues of the common law is that it has never really let pure logic get in the way of common sense and practical necessity when a desirable result is sought to be achieved.”