A trial judge’s duty: correct explanations

More than 1 year has passed since the SCC released Clements v. Clements. More than 6 years have passed since the SCC released Resurfice Corp. v. Hanke. 

There is no valid reason for trial judges to still write that a defendant’s negligence “caused or contributed”, or “caused or materially contributed” to the injury, where the trial judge means that, on the balance of probability, the negligence is a cause of the injury.  (Leave aside the the questions raised if the trial judge doesn’t explain what he or she meant by “materially contributed”.) The negligence either is a cause of the injury or it is not.  If the negligence contributed to the occurrence of the injury, it is a cause of the injury.

 

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