At some point this year, I might have the fortune to attempt, again, to explain the current state of Canadian tort causation law to a class of law students.
I’ll point out, again, that if one attempts to parse the statements of principle in the cases, they too often not don’t make sense. Or they’re not consistent with statements in other recent cases at co-ordinate levels. Or they’re not consistent with supposedly binding decisions of a superior court.
I’ll emphasize, again, that somehow trial and appellate judges (and juries), more often than not, make a decision that’s defensible on the evidence.
I’d set out the text of specific examples, but I’d be repeating myself by using current – 2014 – examples of issues I mentioned in 2013. So, instead, I’ll list the 5 cases now (January 21, 2014 at about 10:30 p.m., on the west coast of Canada where it’s currently not -20 Celsius ) on CanLII that refer to Clements v. Clements, 2012 SCC 32, 2012 SCCR 181, and the citation for one 2012 decision cited in one of the 2014 decisions, and leave it to you to form your own conclusions.
Wallman v. John Doe, 2014 BCSC 79
Moore v. Getahun, 2014 ONSC 237
Doucette v. McDaniel, 2014 BCSC 42
Bergen v. Guliker, 2014 BCSC 5
Raikou v. Spencer, 2014 BCSC 1
the 2012 decision is Hoy v. Harvey, 2012 BCSC 1076 cited in Wallman.
As an aside, I spent an hour this morning adequately explaining how “but-for” is supposed to work in the way I ought to have explained it when I attempted to, to a CLE-BC audience, in May 2013. My audience agreed the explanation was adequate. The difference, this time? For the most part, I used examples of what’s supposed to happen without using the text of the cases. Then I went back to the text that’s supposed to be the source of that result. When one knows what the result is supposed to be, then the language of the text may be understood to state that that is the required result. (That it isn’t – ahem – necessary to understand that language that way; that I may, again, be doing what I did in Snark – creating a sensible reading that isn’t entailed in the wording – is a problem for another day.)