Just published in the 2014 Supreme Court Law Review: Russell Brown, “Cause-in-Fact at the Supreme Court of Canada: Developments in Tort Law in 2012–2013” (2014) 63 SCLR (2d) 327.

Added June 13, 2014: For those who don’t know, Russell Brown is now Mr. Justice Brown of the Alberta Court of Appeal. 

Added Feb 11/14 June 13, 2014: I’m going to discuss the article in some detail over the next month or two eventually. 

I quote portions of the introduction and the conclusion in the next screen.

(from 327-29)

“I.   THE PROBLEM: FINDING CAUSE-IN-FACT IN CASES OF FACTUAL UNCERTAINTY

   From just prior to the close of its 2011-2012 Term to the end of its 2012-2013 Term, the Supreme Court of Canada released two decisions directly concerning the law of torts: Clements v. Clements and Ediger v. Johnston. Both Clements and Edigeraddress the proof of cause-in-fact in cases of factual uncertainty. While, therefore, their respective facts are distinct from each other (Clements arose from a motorcycle accident and Ediger arose from obstetrical treatment during childbirth), it is useful to examine them as constituting two parts of a single direction from the Court about a particular causal problem, being proof of cause-in-fact where no one can say with certainty what really happened.

…

   Factual uncertainty is a different causal problem, on which I suggest Clements and Ediger, taken together, furnish analytical guidance. As I have defined this problem for present purposes, it arises in cases where it is uncertain whether the defendant’s negligence harmed the plaintiff at all. That is, we simply cannot tell —usually because of insufficient scientific understanding of the cause-and-effect relationship posited by the plaintiff’s claim —whether the harm suffered by the plaintiff was caused by the defendant’s negligence or by some other potential cause. This problem commonly arises in medical negligence claims, where our expanding knowledge of the potential causes of medical phenomena has had the concomitant effect of allowing the defendant to point to at least one non-negligent factor (e.g., a pre-existing condition) as potentially causative. The more we know, the more we know we do not know.

It is through the lens of factual uncertainty of the sort I have described here —where there are various potential causes, at least one of which is not the defendant’s negligence, but we do not know whether or how any of them might have contributed to the plaintiff’s harm —that Clements and Ediger are most usefully examined for guidance. Before doing so, however (and in order to place these recent pronouncements within the context of the Supreme Court’s previous jurisprudence), I will briefly canvass three earlier decisions of the Court from the standpoint of the causal problem of factual uncertainty: Snell v. Farrell (which is, I will suggest, reaffirmed by Ediger); Athey (an aspect of which the Court appears to have abandoned in Clements); and Resurfice Corp. v. Hanke (whose scope is, at least for now, narrowly confined by Clements).”

[emphasis in original, internal footnotes omitted]

…

(356)

“IV. CONCLUSION

    For all the new questions that might arise from Clements, the Supreme Court of Canada’s direction to fact-finders in Clements and Ediger should generate a measure of stability in the litigation of most negligence claims characterized by the causal problem of factual uncertainty. That depends, of course, on whether the substance of that direction —particularly as it relates to the drawing of causal inferences in the absence of verifying expert evidence or in the face of opposing expert evidence —will be fully grasped by counsel, fact-finders and appellate reviewers. Why the Supreme Court granted leave to appeal in Ediger might well be explained by precisely that concern. Whereas Clements provides general direction confining the material contribution to risk test, it is its affirmation of Snell and the drawing of causal inferences which will be relevant to most cases (since instances of non-negligent alternative causes vastly outnumber instances of alternative negligent causes). Ediger might usefully be considered at once a how-to guide for counsel and fact-finders on applying that aspect of Clements, and a cautionary note to appellate reviewers that fact-finders may, within the bounds of sound judgment and cogent reasoning, find their facts in hardscrabble terrain where expert witnesses fear to tread.”