If … (East)

trial judges across Canada continue to misstate or misunderstand Supreme Court of Canada decisions, do we blame the SCC or the trial judges? I plan to post a series of examples in individual messages. This is the first.

I’ll start with a recent decision from Nova Scotia: National Bank Financial Ltd. v. Potter2013 NSSC 248.

Some of you might recall the underlying facts. If you’re unlikely, some of you might have an unhappy reason to recall the underlying facts.

Consider this passage:

“696  Recently, in Clements (Litigation Guardian) v Clements, 2012 SCC 32, the Supreme Court of Canada reviewed the law on causation in Canada, in the context of a negligence claim resulting from a motor vehicle accident.

697   The Court reaffirmed that the “but for” test is the normal test to apply, and held that the “material contribution to risk” test is only to be applied in situations where there are multiple tortfeasors collectively responsible for the loss and it is impossible for the plaintiff (through no fault of their own) to identify which specific tortfeasor caused the loss on a “but for” basis. …”

Clements contains a legion (not just a host: the devil is in more than just the details) of problematic statements, about both the but-for test and the material contribution test some of which I’ve written about elsewhere. But, the SCC did not state that the material contribution test applies where there are “multiple tortfeasors collectively responsible for the loss”.

The least of the problems with Potter‘s summary of the material contribution portion of Clements is that the SCC made it explicitly clear the problem that one of the conditions that triggers the application of the material contribution test is that the negligence of least one of the multiple tortfeasors is necessarily not  a cause of the injury. If all of the tortfeasors were collectively responsible in the causal sense, then we have an instance of but-for. We have an instance where a cause of the injury is the cumulative consequence of all of the tortious conduct of all of the wrongdoers.

We have to assume that the trial judge was using “collectively responsible” in some sense that means causation or else it’s meaningless.  The phrase can’t mean “collectively liable”.

On the other hand, and fortunately, it’s probable this misstatement of the law is irrelevant to the result of Potter as the trial judge applied the but-for test.  (Nothing in this note should be taken as saying anything about the trial judge’s explanation of or application of that test.)

But, on an even more irrelevant note, I suppose I could cut this trial judge some slack as he is the only judge, to my knowledge, to have either quoted from, or commended, my version of “Snark” in reasons for judgment: see  Whey v. Halifax (Regional Municipality), 2005 NSSC 348 at paras. 11 -12, even if I’m not entirely sure what he meant by “complete, if not overly analytical”.


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