Broken record time: who’s the boss, or, why invite an appeal?

Gleizer v. Insurance Corporation of British Columbia, 2014 BCSC 1037

[100]     The plaintiff must establish on a balance of probabilities that the defendant’s negligence caused or materially contributed to an injury. The defendant’s negligence need not be the sole cause of the injury so long as it is part of the cause beyond the range of de minimus. Causation need not be determined by scientific precision:  Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17; Farrant v. Laktin,  2011 BCCA 336 at para. 9.

[101]     The primary test for causation asks: but-for the defendant’s negligence, would the plaintiff have suffered the injury? The “but-for” test recognizes that compensation for negligent conduct should only be made where a substantial connection between the injury and the defendant’s conduct is present: Clements v. Clements,  2012 SCC 32.

[104]     Applying these principles to this case, I must determine whether the MVA caused the plaintiff’s injuries …

[122]     In conclusion, I find that the defendant’s negligence caused or materially contributed to the plaintiff’s … injur[ies] …

Now what the SCC said the law is, from Clements and Athey

Clements

[8]      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.

[emphasis in original]

Athey

[41.1]     If it was necessary to have both the accidents and the pre-existing back condition for the herniation to occur, then causation is proven, since the herniation would not have occurred but for the accidents.  Even if the accidents played a minor role, the defendant would be fully liable because the accidents were still a necessary contributing cause.

[emphasis in original]

Clements  was sent back for a new trial. This is the majority’s explanation why:

 [53]     We cannot be certain what the trial judge would have concluded had he not made the errors I earlier described.  All that can be said is that the parties did not receive a trial based on correct legal principles.  In my view, the appropriate remedy in these circumstances is an order for a new trial.

[emphasis added]

I leave it to those readers who are sufficiently interested to read the Gleizer reasons carefully and then ask themselves if the reasons, as published, permit one to conclude that the trial judge applied the but-for test as it is explained in Clements; that is, whether the factual causation conclusion set out in the reasons should be understood to mean “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.”

Trial judges are presumed to know the law they’re required to apply, but what does one do if the trial judge misstates the law? That Farrant misstates the law, too, doesn’t help. There are more recent BCCA decisions, that the trial judge could have referred to, that don’t contain the misstatement.

For example, there is this in Mawani v. Pitcairn, 2013 BCCA 338:

[24]        In my respectful view, this overlooks the clear direction from the Supreme Court of Canada in Clements v. Clements,  2012 SCC 32, [2012] 2 S.C.R. 181. In that case, the Court reviewed the test for causation at paras. 8−10:

[8]        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. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

[emphasis in original]

And, similarly, this in Hansen v. Sulyma, 2013 BCCA 349 at paras. 21-29, where the court also explained what “contributed” to means when used in the “but for” context. I’ll quote excerpts, only, from that part of the Hansen reasons

[21]    Beginning with the question of causation, Ms. Wright focussed on the findings made by the trial judge at para. 78 of her reasons (quoted at para. 17 above) and submitted that the judge failed to apply what counsel refers to as the “necessary cause” test.  In this regard, Ms. Wright relied on the explanation of causation given in a recent decision of the Supreme Court of Canada, Clements v. Clements 2012 SCC 32 (CanLII), 2012 SCC 32, [2012] 2 S.C.R. 181.  At para. 8 thereof, Chief Justice McLachlin wrote:

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. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.  [Emphasis added.]

[emphasis in original]

. . .

[23] … Prior to Athey, the question for courts involving negligence was the same as what is now called the “but for” test: causation was established where the court was satisfied the harm suffered by the plaintiff would not have occurred without the defendant’s breach of duty.  In 1952, for example, Lord Denning explained in Cork v. Kirby MacLean Ltd. [1952] 2 All E.R. 402 (C.A.):

If you can say that the damage would not have happened but for a particular fault, then that fault is in fact a cause of the damage; but if you can say that the damage would have happened just the same, fault or no fault, then the fault is not a cause of the damage. [At 407; emphasis added.]

[24]        The courts traditionally expressed this test in terms of ‘caused or contributed to.’ …

[25]        The phrase “contributed to” in this context was (and is) usually employed to describe causation where there was more than one tortfeasor. As Professor Lewis Klar writes in Tort Law (2003):

As has been pointed out by others, courts have used the expression “material contribution” as a test of causation in different ways.  It can be used simply as a way of illustrating the “but for” test where there is more than one cause for an injury.  It is recognized that in all cases the defendant’s misconduct was only one of several necessary factors required to produce the plaintiff’s injury, each one of which may not have been sufficient in itself to cause the harm.  There was, in other words, not a single necessary and sufficient cause, but numerous factors which together contributed to the result.  To satisfy the requirements of causation, the plaintiff is only required to prove that the defendant’s negligence “materially contributed” to the injury.  A material contribution is equivalent to a cause for the purposes of applying the but for test.  [At 396; emphasis added.]

I emphasize Klar’s statement that where there are several “necessary factors”, each alone may not have been “sufficient cause” but each is necessary to lead to the plaintiff’s injury.  Thus the injury would not have occurred “but for” the negligence of each actor, but the combination of breaches of duty by two or more defendants “causes” that injury, each defendant’s act or omission being necessary and “contributing” to the result.

[26]        This ‘necessary but not necessarily sufficient’ scenario was discussed in Athey … [the Hansen reasons quote from paras. 17-19 of Athey: DC] …

[27]        The Court in Athey referred several times to “caused or contributed to” as describing the “but for” test where there are multiple defendants. At para. 41, Major J. said … and at para. 44: …

[29]  … the trial judge was using “contribute to” in the traditional sense …

It’s probably correct to believe that the trial judge, in Gleizer, thought she was using “contribute to” in the traditional sense. However, can you say from the the Gleizer reasons, alone, what the trial judge understood that sense to be?

Do these statements “]The defendant’s negligence need not be the sole cause of the injury so long as it is part of the cause beyond the range of de minimus” and “The “but-for” test recognizes that compensation for negligent conduct should only be made where a substantial connection between the injury and the defendant’s conduct is present” (see Glezier, para, 100, 101) allow us to safely conclude that the the parties receive[d] a trial based on correct legal principles?

Do the quoted statements necessarily imply the traditional sense of necessity?

Context is, of course, essential. Those of you who are sufficiently interested should review the portions of the Gleizer reasons reviewing the medical evidence in order to decide, for yourself, if the trial judge used any phrasing necessarily or even probably amounting to the concept of necessity in explaining why the trial judge concluded that the negligence of the defendant caused certain of the plaintiff’s injuries. The key paragraphs are 109-122.

Addendum

I think it important to emphasize that the the quotation from Klar, Tort Law (2003), in para. 25, explaining the meaning of the use of “material contribution” in the but-for context predates Clements (decided in 2012)  so has to be understood as an explanation, by Professor Klar, for how Athey‘s material contribution test was understood (or ought to have been understood), then.  It must be recalled that, before Clements, the Canadian legal profession – meaning the judges, practicing lawyers, and academic lawyers in their published writings – understood the Athey material contribution test to be an alternative method of establishing factual causation on the balance of probability. That is the sense in which Klar’s statement “A material contribution is equivalent to a cause for the purposes of applying the but for test” must be understood. Whether or not that explanation includes the proposition that the Athey material contribution test was also based on the concept that the negligence was necessary for the occurrence of the injury is open to question. Given the explanation of the but-for test in Clements, the passage quoted from Klar cannot be used as authority for the proposition that, somehow, “material contribution” in the but-for context means something less than necessity. That conclusion, though, requires that we ask ourselves what “material contribution” means, in the factual causation analysis, if it cannot mean anything other than necessity. The logical answer must be that “material contribution” – the “material” portion of the phrase – must mean nothing in the factual causation analysis and that the phrase refers to some other aspect of the legal causation analysis: the aspect that falls under the alternative labels “remoteness” or “proximate cause. On this analysis, there would be negligence which is causal and which does not make a “material contribution” – it must be causal or the court would not have to consider whether the negligence is material – and negligence which is causal but not material. That distinction, for what it is worth, is necessarily implicit in Athey‘s attempt to define negligence which amounts to a material contribution: “A contributing factor is material if it falls outside the de minimis range” (Athey, para. 15).

As an aside, the version of the Athey material contribution test the SCC applied in Walker Estate v. York Finch General Hospital, [2001] 1 SCR 647, 2001 SCC 23, at paras. 87-88, was based on sufficiency, not necessity. This is too often forgotten, ignored, or simply missed. I’ll save you the problem of checking by quoting the explicit passage, in context.

[87]      With respect to negligent donor screening, the plaintiffs must establish the duty of care and the standard of care owed to them by the CRCS.  The plaintiffs must also prove that the CRCS caused their injuries.  The unique difficulties in proving causation make this area of negligence atypical.  The general test for causation in cases where a single cause can be attributed to a harm is the “but-for” test.  However, the but-for test is unworkable in some situations, particularly where multiple independent causes may bring about a single harm.

[88]      In cases of negligent donor screening, it may be difficult or impossible to prove hypothetically what the donor would have done had he or she been properly screened by the CRCS.  The added element of donor conduct in these cases means that the but-for test could operate unfairly, highlighting the possibility of leaving legitimate plaintiffs uncompensated.  Thus, the question in cases of negligent donor screening should not be whether the CRCS’s conduct was a necessary condition for the plaintiffs’ injuries using the “but-for” test, but whether that conduct was a sufficient condition.  The proper test for causation in cases of negligent donor screening is whether the defendant’s negligence “materially contributed” to the occurrence of the injury.  In the present case, it is clear that it did.  “A contributing factor is material if it falls outside the de minimis range” (see Athey vLeonati,  [1996] 3 S.C.R. 458, at para. 15).  As such, the plaintiff retains the burden of proving that the failure of the CRCS to screen donors with tainted blood materially contributed to Walker contracting HIV from the tainted blood.

[emphasis added].

All of this, for whatever the “this” is worth, is thoroughly (I claim), painfully (some claim), canvassed in my article “Factual Causation in Negligence Clements” (2013) 41 Advocates’ Quarterly 179.  A pre-publication version is available, here.

DC

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