No?

Then let’s look at what Clements actually states.

[28]  To recap, the Canadian Supreme Court jurisprudence on a material contribution approach to date may be summarized as follows.  First, while accepting that it might be appropriate in “special circumstances”, the Court has never in fact applied a material contribution to risk test. Cook was analyzed on a reverse onus basis. Snell, Athey, Walker Estate and Resurfice were all resolved on a robust and common sense application of the “but for” test of causation. Nevertheless, the Court has acknowledged the difficulties of proof that multi-tortfeasor cases may pose ― difficulties which in some cases may justify relaxing the requirement of “but for” causation and finding liability on a material contribution to risk approach

Clements v. Clements,  [2012] 2 SCR 181, 2012 SCC 32, at para. 28, 2012 SCC 32 (emphasis added).

Let’s accept that the members of the Hansen panel do understand what happened in Snell and in Cook v. Lewis, regardless of what is written in Hansen.

That’s because, If para. 28 of Hansen isn’t the result of a series of unusual typographical and proof-reading errors then “what [pause] we’ve got here is [pause] failure [pause] to communicate.”

… and, a real problem in the content of all of the leading torts texts, and the content of the tort courses, and the content of tort CLE programs, in Canada.

For those of you new to the area, the Supreme Court of Canada applied the but-for test in both Snell and Cook v. Lewis. There’s never been any issue about what the SCC claimed it was doing in both of those cases.

On the other hand, if the SCC can claim, or at least imply, as it did in Clements, that the case law usage of “material contribution”, after Athey and before Resurfice,  should be understood to have meant material contribution to risk not material contribution to injury, then I suppose the British Columbia Court of Appeal can be heard to claim that Snell and Cook v. Lewis should be understood to mean something other than they’ve been understood to mean these past decades.

After all, in the edition of Klar, Tort Law, that  the BCCA cited – the 3rd edition published in 2003, even though we’re now up to 5, the 5th published in mid-2012 – we don’t find the discussion of Snell in the text’s “but-for discussion (at pp. 389-92). Instead, we find it (at pp. 401-03) in the section titled “(vi) Redefining Cause: The Material Contribution in Risk of Injury Approach“. Professor Klar concluded his discussion of Snell with these statements, at 402-03.

To allow an inference of cause to be drawn even where there is no scientific evidence of a probable connection between negligence and injury is in effect to accept the essential principle of McGhee. While this approach may produce a pragmatic solution to a plaintiff’s dilemma in difficult causatoin cases, it does depart from the traditional “but for” for test, and the balance of probability standard.

In any event, since it is no longer 2003, and we’ve had two editions of Klar, Tort Law, since then, let’s look at what Prof. Klar wrote about Snell in the 5th edition. (Let’s not speculate how or why it is that the Hansen panel was prepared to refer to an out-of-date edition.) Once again, we don’t find the discussion of Snell in the but-for section (pp. 448-51) of the causation chapter (c. 11). Once again, we find the discussion of Snell in a section headed “Alternative Approaches: Establishing Cause In The Difficult Case” (p. 452). in its own subsection that

1.  follows after a sub-section titled “Making it Easier for Plaintiffs: Alternatives to the ‘But For’ Test” (p. 454),

2.  in a subsection titled “The ‘Material Contribution’ Test: What is it and When Does it Apply?” (p. 456),

3.  after discussions in sub-subsections headed “Materially Increasing the Risk of Injury: McGhee v. National Coal Board” (p. 459) and “The Englilsh Mesothelioma Judgments” (p. 461), and

4.  under the heading “The Robust and Pragmatic Approach” (pp 465-66).  This time, Prof. Klar after again noting (as he had in the 3rd edition, that Snell expressly rejected the two approaches in McGhee, wrote (at 466), to conclude the discussion of Snell:

     Having said all of this, it is not surprising that Sopinka J. found that the evidence in Snell supported the inference that it was the defendant’s negligence which caused the plaintiff’s injury. In sum, while rejecting the bold principle of McGhee, Sopinka J. adopted its spirit, and upheld the plaintiff’s claim.

The effect of Snell v. Farrell on proving causation in cases where the scientific and expert evidence cannot establish a probable connection between a defendant’s negligence and a plaintiff’s injury has been significant.91 To allow an inference of cause to be drawn even where there is no scientific or other probative evidence of a probable connection between negligence and injury is in effect to accept the essential principle of McGhee via a different route.

(footnote omitted, emphasis added). For what it is worth, the omitted footnote – it’s fn 93 – affirms Snell‘s status as a case in which the SCC claimed to have applied the but-for test.

What Prof. Klar has claimed, in the passages quoted, is that, depending on one’s view of the scope of “probative evidence”, if one takes the Snell robust, pragmatic, commonsense, approach to its logical conclusion, it permits a finding of an actual causal connection without adequate evidence. Or, to borrow a phrase from another court, the Snell approach, extended to its logical end, if improperly applied, permits judges and juries to “conjure up” a connection.

It is of course, one thing to state how Snell ought to have been, or ought to be, understood by judges and lawyers. It is a very different other to describe how it was and is, in fact, understood.

In Prof. Klar’s defence, the 5th edition had gone to print just before the release of Clements.

In any event, first-year law students should look at the quotation from  Hansen and ask themselves what effect that would have on their marks in legal research and writing if they did what the BCCA did.

Many of you have heard versions of the “failure to communicate” line I’ve quoted and linked to. Some readers will recall the line. Others will recall the line and will have seen the movie. If you haven’t seen it, do.

[Portions of  this post first appeared in the University of Alberta Faculty Law Blog under the heading Failure to communicate.)