All you need is … the facts (usually)

even if the trial judge misstates the law. Or it’s not clear what the judge thought the law is.

That’s why appeals are, broadly, from the evidence, not the judge’s reasons.

I gave a lecture on – surprise: proof of factual causation –  few months ago for the Continuing Legal Education Society of British Columbia.

One point I made was that, if counsel (for either side) adduce the required evidence on factual causation, the trial judge’s decision is, probably, going to be  supportable on the evidence – so not subject to valid reversal on appeal – even if the trial judge misstated the law.

I didn’t expect to have clear examples so soon. I’ll use three recent British Columbia, Alberta and Ontario decisions.

The Alberta decision is McAvena v Byrne, 2013 ABQB 306. I’ll mention two points. There are others I might write about in the future. First, as you read it (should you chose to), ask yourself, based on what you’ve read, what the standard of proof was.

The second issue is one of legal ethics. It’s the problem that experienced counsel have where the a litigant is unrepresented, or where the other counsel isn’t as experienced, and there is case law which the other side (or counsel) don’t seem to know about that could be relevant. Based on the reasons, McAvena the individual plaintiffs were self-represented. There’s a UKHL case – Chester v. Afshar, 2004 UKHL 41 – which lawyers who regularly handle significant medical malpractice claims undoubtedly know of.  If the trial judge had decided to apply it to decide the causation issue in the informed consent claim , the plaintiffs would have succeeded.  As it happens, I think the Chester analysis of causation in informed consent cases isn’t available in Canada until the SCC says it is; but, even if it could be, the analysis wouldn’t apply to the facts of McAvena given the trial judge’s findings of fact. But Chester isn’t mentioned in the reasons. Some of you who read this blog may recall that Chester could have come up in Ediger.  It didn’t because of the way the SCC decided Ediger but the Chester argument was one that the plaintiffs made in their factum. I’ll stop there.

The British Columbia decisions are Kemle v. McRae, 2013 BCSC 935 and Brewster v. Li, 2013 BCSC 774. The trial judge’s statement of the causation principles in Kemle appears in paras. 84-85. Para. 84 of Kemle merely quotes the law as set out in Brewster in paras. 77-84. (Para. 85 of Kemle isn’t a problem.)

I don’t intend to quote the  the Brewster paras., except to the extent needed so, if you’re reading along, open Brewster in another window.

Paras. 77-78 of Brewster are fine.

Para. 79: the first sentence is correct. The second sentence is a problem. It’s never a defence that some person other than the defenant was also at fault. The second sentence implies it is. Knowledgeable counsel would know that but that’s irrelevant.

Para. 80 is fine.

Para. 81 contains the same problem as para. 79. The last two sentences ignore the distinction between multiple insufficient but cumulative causes and multiple separately sufficient causes, and the difference between instances where the latter are all tortious and where at least one is not. (Ignore, here, the complication where one of the sufficient causes is the plaintiff’s own carelessness). Thus, we have the trial judge stating, in the 2d, 3rd and 4th sentences:

To assess whether the defendant caused an injury, the trial judge asks if, without the defendant’s tortious act, the injury would have resulted. If the answer is “yes”, the defendant is not liable for the injury or the losses flowing from it (Athey at para. 41). If the answer is “no”, the defendant is liable to the plaintiff for the whole of the losses flowing from the injury (Athey at paras. 22 and 41).

The 2d sentence is correct.

The 3rd is wrong if the other cause(s) is (are) tortious. The trial judge was referring to Athey 41.1 which is premised on the other cause not being tortious (and not being the conduct of the plaintiff.)

The fourth sentence because it is premised on the existence of  multiple causes, one of which is the defendant’s negligence, all of which are  cumulatively necessary: as was the case in Athey. That’s the point Athey made in paras. 32 and 41.2.

The first sentence of para. 81 is literally wrong: the but-for test is the test for factual cauastion, not the “test for causation in Canada”, but that’s an irrelevant niggle, here.

Para. 82 repeats the problem of ignoring multiple sufficient causes where any of the sufficient causes are not tortious. It’s essentially a restatement  para. 81 with new cases. I’ll quote only the 1st sentence of para. 82: “Once causation for an injury is established, the defendant is liable to the plaintiff for all of the loss(es) flowing from that injury.” There is factual causation where there is separately sufficient negligence and and some other sufficient cause which was never actionable. There just isn’t a compensable change of position.

Para. 83 fixes that problem for the knowledgeable by quoting one of the two Athey change of position paragraphs (Athey para. 35 – the trial judge should have quoted Athey 32).

Similarly, para. 85 of Kemle shows the trial judge understood the original position limitation.

I think the misstatements don’t affect the result in either case; because neither case has the problem of multiple sufficient tortious causes or multiple sufficient causes at least one of which was never tortious.

I appreciate that some people might say I’m nit-picking.

The Ontario decision is Botosh v. City (Ottawa), 2013 ONSC 5418. I’ve just mentioned this case in a comment, here, so I won’t repeat that. I’ll just pose the question that summarizes that discussion. What test did the judge apply? Even if you read the trial judge’s reasons to imply it was but-for, can you say what the judge understood but-for to mean?

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