If … (intermezzo)

Assume that Clements material contribution to risk and Walker Estate material contribution to injury do not apply.

If, during argument or submissions on causation, a judge (motion, trial, appellate) suggested to you that, on the balance of probability, it was commonsense that the defendant’s fault (or the plaintiff’s contributory fault) was a factual cause of the plaintiff’s injury,  would you risk asking the judge what “commonsense” meant?

Would you ask the judge if “commonsense” meant that the negligence was necessary for the injury to have occurred?

Would you ask the judge if “commonsense” meant that the negligence was merely sufficient for the injury to have occurred, even if it was not necessary?

If the judge gave you an answer as to which of the two the judge meant, would you ask the judge why he or she didn’t say that rather than use “commonsense“?

Would you be waiting? hoping? the judge would say something that amounted to “sufficient but not necessary”?

If the judge declined to answer, what would you say?

Would you suggest to the judge that since he or she is  bound by SCC decisions (unless you’re in the SCC, where you might chose to phrase the statement a bit differently)  “commonsense” has to mean “necessary”, so that there was no reason at all for the judge to have used “commonsense“?

After all, does the statement “it is commonsense that X is necessary for the occurrence of Y” tell us anything about why and how the judge concluded the evidence leads to the conclusion that, on the balance of probability, the occurrence of the defendant’s or the plaintiff’s faulty conduct  was necessary for the occurrence of the injury?

We have to assume that “commonsense” is a label for something about the evidence that supposedly establishes a legally relevant relationship between the conduct to the injury. If it’s not, then “commonsense” is meaningless in this discussion.

What is that relationship? What is that something? Would you ask the judge to clarify what he or she is asking about?

Would you tell the judge that if it’s enough for a judge to say that it’s “commonsense” that X was probably a cause of Y, then why isn’t that enough for a jury. After all, a jury doesn’t have to explain. And, the law about which the judge instructs a jury on is supposed to be the same law the judge uses to instruct himself or herself.

Would you risk the judge suggesting you were verging on contempt (of court)? It’s easier if you’re older than the judge, of course.

I suppose it’s a good thing (for me) that so few people read this blog, even though I’m not saying anything I’ve not already said more explicitly in print.


  1. Brian Babcock

    I suggest that the footnote to paragraph 8, while not the ideal reference to the but-for test is a sufficient and adequate indication that she applied the correct law to withstand an appeal. She only refers to Alderson in a different context, i.e. paragraph 94- well removed from her discussion of causation of injury. At most, she might be faulted for applying the wrong test for causation of loss. It would be interesting to see what Moldaver J. would have to say about what Moldaver J.A. said in Alderson. Alderson is of course not mentioned in Clements.

    In the section on contributory negligence, she looks at the mechanics of the fall in greater detail than I appreciated in my earlier comment- it appears that there was no evidence that the pre-existing condition contributed to the fall. The finding of zero contributory negligence, in itself unusual for a “watch where you are going” case, suggests that the judge considered the combination of the trip edge and lack of warning to be the sole causes of the injury- classic but-for without saying those words.

    Similarly, though paragraph 56 might not be an example for the next Judicial Institute seminar of best practices, the judge does find as a fact that non-repair existed and that the non-repair “caused” the fall. She does not say “materially contributed to the fall”. Given the reference to Clements. I am indeed satisfied that she applied the correct test for causation of injury, and made the required finding.

    But for judicial fallibility in writing, we would not have pleasure of these mind-honing discussions.

    • David Cheifetz

      We shouldn’t need to have this discussion over a case as seemingly simple as Botosh where the problem is the failure of the trial judge to explain adequately.

      You’re satisfied because you’re reading between the lines and conclusions – just like me, you’re guessing – about what the trial judge meant. Maybe you’re right, maybe you’re not.

      But –

      On their face, the reasons could be taken to say this: “I’m satisfied the plaintiff took reasonable care, therefore she must have fallen due to the non-repair condition.” If that’s what the judge meant, it’s not a valid analysis. That problem unfortunately, is the consequence of the trial judge’s far more detailed explanation of why there was no contributory fault. Human legs aren’t piano legs. Human legs (even Usain Bolt’s) sometimes give way for reasons that aren’t somebody else’s fault.

      Here, the trial never explained what she meant by “caused” or “causation”. Instead, she wrote:

      [31] In order to establish liability for a breach of the duty of care, Ms. Botosh must first prove that:

      a) On a balance of probabilities, a condition of ‘non-repair’ existed that was not reasonable in the circumstances, including the character and location of the crosswalk; and

      b) The condition of non-repair caused her fall and subsequent injuries.

      [32] This proof, or test, is referred to as causation. The causation test “must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution of the Defendant’s negligence made to the injury.”[2]

      [33] If Ms. Botosh proves that there was a condition of non-repair that caused her injuries, the onus then shifts to the Municipality to establish one or more of the statutory defences available under Section 44(3) of the Municipal Act.

      The text of footnote [2] is: Clements v. Clements, 2012 SCC 32 (CanLII), 2012 SCC 32, [2012] 2 S.C.R. 181, para. 9.

      What “proof or test” for causation does para. 32 refer to? What you’re saying is that the text of para. 9 of Clements tells us: “The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury.” You’re likely right. Or, maybe it was merely a typo and the trial judge meant to refer to para. 8 of Clements, too. Para. 8 of Clements contains this:

      “The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry”

      In either case, that’s something the ONCA might say on an appeal. But, to do so validly, the Court will have to review the transcript to see what the evidence was as to whether the plaintiff’s existing physical limitations could have explained why she tripped. The ONCA shouldn’t have to do that. If I’m the appellant’s counsel, I’ll get paid so I won’t complain. If you’re the respondent’s counsel, you might be responding on your own dollar.

      As I wrote, human legs aren’t piano legs. Maybe Usain Bolt usually doesn’t trip and fall absent some external influence. Me? My knees show the consequences of some 45 years of goaltending. Every now and again, even on flat terrain my left knee will buckle slightly; or, sometimes my left leg drags slightly. I won’t trip over a cockroach, but I might catch my toe on a something that’s not abormal.


  2. Brian Babcock

    Dear David, trust you to pick one of my pet peeves- indeed, far too many judges seem to have drank OTLA’s slip and fall flavoured Kool-aid.

    For the sake of losing this argument the same way I lose at chess- slowly but inevitably- let me posit that though people may fall without negligence, Pianos don’t just fall without negligence. I assume that is still good law, notwithstanding res ipsa loquiter no longer being acceptable verbiage? If so, that is an example of “common sense” inference from circumstantial evidence.

    I don’t see Botosh as an absence of evidence case in the same category as Clements or medical malpractice cases. The Plaintiff had expert evidence upon which the judge relied as to the nature of the hazard.It is common for Plaintiffs in slip and fall cases not to be able to give precise evidence as to the mechanics of the fall- if they had seen the hazard, they likely would have avoided it. The Defendants’ admission that she tripped (para 8) looks like the missing link to me. They shot themselves in the foot.

    Whatever the case may lack analytically, it is consistent, I think, with what goes on in trial courts every week. Slip and fall cases differ from the line of cases retreating from Snell in that, in Ontario at least, there IS a reverse onus, in that the statutory duty on occupiers (and similarly, though not identically, on municipalities), relieves Plaintiffs of the burden.

    Or maybe because Justice Warkentin used to reside in thunder bay, I prefer to defend her decision. Or, because my cerebral palsy affects me much like Ms. Botosh(though slightly less severe), I can put myself in her shoes, excuse the pun.

    • David Cheifetz


      We’re disucssing, I hope, the adequacy of the reasons, not whether the result is the better conclusion on the evidence.

      You wrote: “If so, that is an example of “common sense” inference from circumstantial evidence.” Did you mean “If so, that is an example of valid inference from circumstantial evidence.” if that’s what you meant, then why not write the statement that way? If you meant valid, it tells me what you’re supposed to have meant and why. But, if you didn’t, it doesn’t.

      Justice Warkentin found that a non-repair condition existed. It would have been very easy for her to write – and given Clements, Snell, and what the ONCA has said in the past 6 years one would have expected her to write – something like this:

      “I am satisifed, on the balance of probability, the plaintiff would not have fallen if sidewalk had been maintained properly”;

      or, a favourite judicial double negative

      “I am satisifed, on the balance of probability, that but-for the non-repair condition, the plaintiff would not have fallen”;

      if what she meant was that the non-repair condition was necessary, in the circumstances, for the fall.

      Or some other wording that leads us to conclude based on her languaget, itself, without resorting to maxims of interpretation unique to law, that that’s probably what she meant.

      But she didn’t. So, we are are forced to guess whether she meant necessary or merely sufficient. Or something else.

      Do we apply the presumption that trial judges know the law that they (notionally) apply on a daily basis, an then conclude (assuming the evidence is such that a trial judge acting properly could arrive at the decision) that she merely forgot to use the magic words she so easily could have used. To do so, if there’s an appeal, we have to read all of the evidence then ask ourselves why the trial judge failed to use the magic words given all of the recent reminders. Maybe we conclude that’s what she meant to say.

      Or maybe we say the appellate equivalent of “oh shit” and conclude we have to send it back because we shouldn’t have to guess what the trial judge meant in an ordinary slip and fall case Or another case equally equally simple where, for whatever reason, the reasons for judgment make one guess as to what the tral jduge meant and the appellate court decides it won’t so the case gets sent back for a new trial. A good enough, recent, Ontario example is Donley Investments Limited v. Canril Corporation, 2011 ONCA 625

      “[11] The trial judge erred in her causation analysis. In her reasons for judgment, she recognized that the evidence establishing a causal link between the damage to the respondent’s building and any fault or wrong committed by the appellants was not strong and certainly was not made out on the basis of expert or scientific evidence. In her analysis of the applicable law, the trial judge did not refer to the standard “but for” test for causation. Rather, she held, citing Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, that causation could be established on the basis of material contribution to the occurrence of the injury that was greater than de minimis. In our view, the facts of this case do not justify deviating from the standard “but for” test for causation: Resurfice Corp. v. Henke, 2007 SCC 7, [2007] 1 S.C.R. 333. It follows that the trial judge erred in law by applying a more lenient test.”

      Are you satisfied the trial judge in Botosh didn’t apply some form of the material contribution test, given her reference to Alderson? Adequate reasons are part of the trial judge’s duty.

      You’re right that Botosh is all about evidence. Maybe the evidence in Botosh was sufficient for a trial judge to find for the plaintiff, on the balance of probability. It’s also a case where the reasons that shouldn’t have produced the discussion we’re having.



  3. David Cheifetz


    (rev’d comment)

    Nah. I was in Australia earlier this year. Gravity apparently works there, too. Or maybe it’s the invisible velcro strips.

    It’s always fortunate when a judge provides contemporaneous evidence of the nonsense of the common sense claim (without us having to wonder what “robust” adds). See Botosh v. City (Ottawa), 2013 ONSC 5418. Did the trial judge decide that the condition of the sidewalk was necessary for the plaintiff to have fallen as she did? Was sufficient for?

    Or was the common sense explanation because, in the absence of witness, the Devil made her do it wasn’t a viable alternative and we all know (common sense) that people don’t fall unless there’s something wrong with the sidewalk once they claim they weren’t doing anything that might have caused them to fall, except for the fact of the condition of non-repair (which could have been a cause) because they are always careful when they walk given they have an existing disabiltiy.

    There was another viable alternative for the fall entirely consistent with an existing condition that limited the plaintiff’s mobility. The condition is mentioned but the trial judge accepted the seems to have plaintiff’s evidence that that condition wasn’t involved in the fall in any way.

    Or, since the trial judge footnoted Clements, we apply the presumption of regularity and assuem the trial judge knew what Clements required her to find to find factual causation, even though she didn’t formally set that out either explicitly or implicitly.

    Apropos what causation test the trial judge applied, and old case law (including Alderson) you’ll see that, in discussing damages, she cited Athey and Alderson on the original position point.

    What’s the point of citing Alderson, other than that the trial judge was familiar with it from once-upon-a time?

    One can read the Alderson paras. as also dealing with damages assessment but they’re more than that. Decide for yourself what it means that the judge would be citing the Alderson contributory causation paras, here, including para. 10 where the ONCA said that, based on Athey, the test for causation was whether the injuries sustained as a result of the negligence “materially contributed to her overall condition”.

    In any event, after you read the case, let me know whether you think the judge used necessity, sufficiency, or common sense meaning something else – as in “we all know people taking care don’t fall without it being somebody or something else’s fault”.


  4. Brian Babcock

    No doubt Australian common sense is the reverse of Canadian common sense. Otherwise they would realize that they should fall off the bottom of the Earth.

    It will be interesting to see the Court of appeal apply Clements, now that they have further distanced themselves from Athey, upon which the two cases you cite are based. It is interesting that they are both medical malpractice cases, a category which is especially reliant upon expert evidence (because little of modern medicine is accessible to lay common sense, and surprisingly often is counterintutive). Clements being a motor vehicle case, does common sense allow the trier of fact more leeway on missing evidence like speed or measured distances? Lay opinions have been allowed on those issues in various contexts.

  5. David Cheifetz


    Or, one could hide behind precedent and quote the ONCA (quoting the UKHL) on common sense:and causation:

    “[C]ommon sense cannot become a substitute for resort to evidence . . . The mere application of ‘common sense’ cannot conjure up a proper basis for inferring that an injury must have been caused in one way rather than another.”

    See Fisher v. Victoria Hospital, 2008 ONCA 759 at para. 59 and Arisotrenas v. Comcare Health Services, 2006 CanLII 33850 (CA) at para. 63 (internal quotation marks omitted).

    If at least 20% of the ONCA believes something, there must be some merit to that belief, no?

    You’d think judges wouldn’t need to be reminded that abracadbra only works in fantasy (and even there, not always as expected, otherwise the HBO “Game of Thrones” would have tanked, even if it is socially acceptable soft-core porn).

    Or, one could put one’s tongue firmly in one cheek – rather than the “Game of Thrones” places – and point out to the judge that, in Australian tort law, commonsense means handling causation in tort the Australian way. That, in turn, means recognizing that but-for is an inadequate, incomplete, test which is useful only as a limiting factor.

    Trained members of the science and math discplines know that there a problem where the same “X” simultaneously equals both A and Not A. One might, of course, say, that Canadian commonsense is different from Australian commonsense, so there’s no conflict at all. Perhaps that’s true, given that the Australian equivalent of the Canadian house with a three care garage is a house with a far bigger shed. (Often quite better appointed than the garage, too.)

    Or, one might say that some aspects of law are analogues of religion, not science, so that what appears to be inconsistencies are merely the failings of our mortal minds. After all, if we could understand the minds of our god(s), then we’d be god(s) too, no? It’s something about ducks quacking, I think.

    Anyway, the offer of an offprint remains open, until they run out.


  6. David Cheifetz

    The “mere bald assertion” phrase is shorthand for the claim that there’s no admissible evidence to support the assertion. The claim tells the listener / reader exactly what the court thinks was the problem with the argument.

    “Commonsense” is meaningless shorthand”Commonsense” tells the listener / reader nothing about either the decision maker’s method of analysis or the evidence to which that analysis was applied (unless one is telepathic, of course, but let’s agree that telepathy isn’t yet an acknowledged ability outside of fantasy realms).

    It’s like a math exam where the student where the student is supposed to provide both the equations and the conclusion but provides only the latter. Did the student cheat? Make a lucky guess?

    Moving back to court: did the judge adopt the submissions of one side or the other, or an argument made over tea with a colleague, but then forget to attribute?

    If the conclusion is really commonsense, then judge should be able to explain what “commonsense” means without using the phrase.

    “Logically derived from the judge’s knowledge of how things work in the world” tells one absolutely nothing about the constitutents of judge’s path to the conclusion, unless the judge also explains what the judge means by how things work and what the evidence is that makes that “how things work” applicable. But, if the judge does that, “commonsense” adds nothing. Being redundant, it’s redundant.

    If the judge doesn’t? Then the reasons aren’t valid because they don’t do what judicial reasons are required to do to be valid. The decision may still be correct on the evidence, but that’s a different issue.

    Let’s simplify this. If you claim some conclusion is commonsense and I claim it’s not, does that tell anybody anything useful about why we disagree? Don’t forget the content of “commonsense” is variable from time to time. After all, once upon a time it was judicial commonsense (in Ontario, at least) that the but-for test was impossible to apply validly in all cases where the injury had multiple causes. It’s ironic that the judge responsible for that notion is now on the SCC and was prepared to agree otherwise.

    Anyway, thanks for reading the article. Were the black flies so bad it was either that or watching “Game of Thrones” on TV?


  7. Brian Babcock

    I’ve been accused from time to time of having more audacity than common sense, but even I might tread lightly here. I might well ask politely for clarification, depending upon where I was in the argument- my experience is that there is no victory in taking on a judge on a point upon which they have made up their mind, if there is another point to argue. If it is the last hill, then I have been known to die there. Still, I would be more likely to try a sidestep than direct attack. Maybe “with all due respect your honour, common sense may not stand up to a closer look at the facts…”

    And though I am older than the judge distressingly often these days, i learned boldness as a young pup. In my jurisdiction, we had a judge back in the day that loved to interrupt argument and play devil’s advocate- he missed being counsel and loved to get into a healthy debate. That drove the shyness out of me- a lesson I try to share with younger counsel now.

    Straying a bit from the question posed in this post, having read your Advocate’s Quarterly treatise, I wonder though if “common sense” is not just judicial shorthand for “logically derived from our (my) knowledge of how things work in the world”, as distinct from “logical in an abstract theoretical sense for far removed from how the world works that the result would be absurd.” Because we all know that logic can be twisted to make the impossible, or wildly implausible, seem logical. Sort of like how Court of Appeal judges coined the phrase “mere bald assertions” to discount facts averred to on summary judgment motions obviously just trumped up to try to create a false triable issue.

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