Don’t call us, we’ll call you

No, not the title of and message in the sly Sugarloaf song, here, though it’s worth listening to.

Rather, its the SCC’s dismissal of the leave to appeal application in Goodman v. Viljoen2012 ONCA 896, leave to appeal denied 2013 CanLII 42519 (SCC) (July 11, 2013).

The message the SCC is probably sending is that, in civil cases where the appeal involves factual causation – cause-in-fact – the Court is unlikely to grant leave to appeal on the causation issue where the Court will be able to characterize that issue as merely whether there was enough evidence to support the trial judge’s conclusion.

It’s more than just arguable that that’s entirely the wrong characterization of the problem in Goodman but, on this point, the SCC has spoken.

Until the next time it speaks.

In any event, the dismissal also reinforces the message the SCC sent to appellate courts in Ediger:  be more leery of interfering with trial judge’s findings of fact.

We’ll have to wait for a few more leave to appeal decisions involving causation issues, in civil cases, before there’s enough of a sample from which to speculate about the likelhood that  we’re in for a decade or so of doctrinal certainty:   just like (ahem) the period between Athey and Resurfice – before another SCC panel decides to indulge in a bit of judicial revisionism in the form of what the comic book and fiction worlds call “retcon“. That’s short for ” retroactive continuity“.

And, after a few more years, finally concedes that that  “retconning” was inadequate so tries it again.

Lawyers who practiced civil litigation in the 1997-2006 period will remember what a portion of the SCC’s decision in Athey was said to mean by every appellate court in this country, including panels of the ONCA on which Moldaver JA, as he then was, sat, at least until Resurfice.  And how that meaning seemingly vanished from the lexicon of all of the appellate courts after Resurfice but, seemingly, without any difference in the result of cases.

But, then, as H. Dumpty J (sitting extra-judicially) noted, words mean those in power say they mean, nothing more and nothing less.  What he didn’t mention, no doubt intentionally,  is that leaving the meaning of one’s words, whether seemingly clear or clearly Delphic, in the hands of rarely supervised acolytes too often results in disagreements about the meaning of those words.

Is it any wonder that, with perhaps one exception, nobody in the Canadian judicial realm has yet found a causative Snark? There was an Ontario trial who suggested, openly, that might have found an example: see 2008 CanLII 42207 at para 214.

Before Resurfice, such a situation might well have been determined according to the material contribution test described in Athey v. LeonatiThis court might determine that the “but for” test is unworkable in view of the fact that Grant’s debilitating psychiatric illness has been causally contributed to both by the conduct of Dr. Haukioja and by the injuries and consequences arising from the motor cycle accident.

However, even that concession has been “retconned” out of existence because, according to Clements, that understanding of Athey was always wrong: see Clements at para. 15 – “While the cases and scholars have sometimes spoken of “material contribution to the injury” instead of “material contribution to risk”, the latter is the more accurate formulation.”

I suppose it bears repeating that one of those cases was the SCC’s own Walker Estate, even if that version of material contribution was limited to cases arising out of the negligent screening of blood donors and even if that interpretation of Walker Estate was seemingly retconned out of existence by the SCC’s use of Walker Estate as an example of an instance to which the restated version material contribution applies.

Plus ça change, right?

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