Some comments on the trial decision, which you’ll find here.

As usual, the focus is on the causation aspect. Based on the reasons as published, the causation issue in Briante was argued only on but-for grounds. It’s worth asking if there was at least one other approach.

Of course, it’s possible it’s just me missing something obvious, but:

1.  If the facts were as described by the trial judge in para. 335, why did the case ever get as far as trial? Betting the farm on one’s belief one can destroy the defence’s key expert witness in cross is a heck of a roll of the dice, especially where, apparently, one’s own key expert witness essentially agrees with the other side’s expert on the key point. (In the end, that defence witness was not cross-examined. His evidence went in, unchallenged. His evidence was not so incredible that it was likely to have been rejected, no matter what.)

2.  If one is going to make arguments (see para. 338-340) at trial that are currently contrary, or at least seemingly contrary, to the law, in Canada, as set out by the SCC in Clements and Snell, shouldn’t one have some cases from, say, other jurisdictions that might lay the foundation at the appellate level for those arguments? Maybe even some (scholarly) articles?  Yes, they exist. No, I’m not going to cite them here, now. But I have mentioned them, before. Unfortunately, the reasons don’t mention what cases and other authorities plaintiffs’ counsel relied on for these arguments.*

3.  Given Ediger v. Johnston, 2013 SCC 18 the first sentence in para. 341 of Briante

“[341]     It is clear that causation cannot be inferred particularly where the defendants have called evidence on causation.  Moore v. Castlegar & District Hospital  (1998), 49 B.C.L.R. (3d) 100; Borglund v. Fraser Valley Health Region, 2006 BCSC 1338.  There must be a “substantial connection” between the negligent conduct and the injury. Snell v. Farrell, above.  The defendants submit that where it is impossible to know if the outcome would have been more favourable had Joseph been referred to the on-call psychiatrist on October 29, 2007, all they can say is that the outcome for Joseph might have been better, not that it would probably have been better.  (See: Seatle v. Purvis, above at para. 145).”

is wrong as to what BC (and Canadian common law) is. It’s an irrelevant mistake, but still an unfortunate one.

(Digressing for a moment: the second sentence is wrong too. The connection must be a necessary connection if the issue is factual causation – the trial judge seemed to have got that correct earlier, at para. 317, so the “substantial connection” statement is puzzling: Clements and Snell and Athey and … well, you get the point. If it’s remoteness that the judge meant by referring to “substantial connection” well, that’s a different question but remoteness wasn’t in issue.)

If you need more, I’ve explained why the Moore v Castlegar dictum isn’t now (and was never, in fact) good law, before, on this site. I won’t rehash the arguments. Somebody more important has, now, elsewhere, too, in material that was available to the parties and the trial judge: see R. Brown (now Brown J.A. of the ABCA), “Cause-in-Fact at the Supreme Court of Canada: Developments in Tort Law in 2012-2013” (2014) 64 SCLR (2d) 327 at 351-53, specifically referring to (and quoting) para. 36 of Ediger.

“[36]  The Court of Appeal’s reasons also suggest that it understood the trial judge to have improperly relied on Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311, in order to draw an “inference of causation” (paras. 83-85).  Snell stands for the proposition that the plaintiff in medical malpractice cases — as in any other case — assumes the burden of proving causation on a balance of the probabilities (pp. 329-30).  Sopinka J. observed that this standard of proof does not require scientific certainty (Snell, at p. 328; Clements, at para. 9).   The trier of fact may, upon weighing the evidence, draw an inference against a defendant who does not introduce sufficient evidence contrary to that which supports the plaintiff’s theory of causation.  In determining whether the defendant has introduced sufficient evidence, the trier of fact should take into account the relative position of each party to adduce evidence (Snell, at p. 330).”

I’ll quote from Brown J.A.’s article, at pp 352-53 (footnote text omitted, though readers should read them, too: omitted because I want people reading this piece to go to the article) beginning immediately after the article sets out para. 36 of Ediger.

       “To appreciate this statement’s significance, it must be understood that the defendant had relied, at the Court of Appeal (and in his factum, but not in his oral submissions, at the Supreme Court), on appellate authority in British Columbia precluding the drawing of a causal inference where the defendant introduces expert evidence that cause-in-fact does not exist. [83] The Court of Appeal had applied this rule in Ediger (Guardian ad litem of) v. Johnston, [84] where the defence had led such evidence disputing cause-in-fact, and offering alternative explanations for the umbilical cord compression, such as a kink or a nuchal cord. Given that context, the Supreme Court’s statement appears to reassert the point from Snell that finding cause-in-fact is a matter of drawing inferences from the evidence, rather than waiting to be led to the “correct” answer by an expert. An inference of cause-in-fact may be drawn (or not drawn) in all situations — that is, irrespective of whether there is expert evidence in only one direction, both directions, or no direction.[85] The plaintiff’s burden is to prove cause-in-fact to a balance of probabilities. The mere fact that the defendant adduces expert evidence opining that cause-in-fact does not exist does not oust the fact-finder’s role, but simply requires the fact-finder to weigh that evidence against the plaintiff’s and determine whether the plaintiff has met her burden.

      All of this makes considerable sense when it is borne in mind that ‘[i]nference-drawing is an ever-present and intrinsic characteristic of all fact-finding, including causal fact-finding’.[86]”

4. And, for something completely different. I very much wish I’d been in the UK to see the almost perfect last-ever (we’re told) Monty Python reunion. Perfect would require them to have been able to have a one-time appearance by very special guest star, conceding that the last time anything of that sort supposedly occurred was some 2000 plus years ago on a different continent. Briante is a good example of the principle that causation is irrelevant to apportionment of fault between parties at fault. That’s why the trial judge was correct in the manner in which he handled the apportionment issue, and why he was able to apportion fault as between the negligent defendants (see paras. 309-314) even though their conduct was not factually causative. Apportionment depends on relative blameworthiness, not factual causation.

Once every 2000 years or so isn’t too much to ask, is it? Or maybe it is.

* Addendum

1.  If one is going to attempt to win a medical negligence case even if one can’t establish factual causation on the balance of probability then, currently, in Canadian tort law, there’s only one acknowledged route, so long as as the case has two or more tortfeasors. Which Briante did: 2 to be exact.

But, there’s nothing on the face of the reasons that indicates the the material contribution to risk doctrine, as explained in Clements, was argued as an alternative method of satisfying the causation requirement. On their face, the reasons imply that the case was argued only on the but-for basis. Of course, someone with enough knowledge might try to read something more into the “risk as the gist of the damage” argument that the trial judge, in Briante, seems to have referred to in the first sentence of para. 339, particularly given what that rationale means in the U.K. line of authority that’s the source of the material contribution to risk doctrine. But, again, one would think, and hope, that if that argument had been made it would have been mentioned in the reasons.

I might, at some point, write a few words about how Briante might have been argued under the Clements material contribution to risk doctrine. I won’t, today, beyond these questions: (1) could the facts of Briante satisfy the justification for the material contribution doctrine; and, (2) the requirements for the doctrine? If you say no, why not? You’ll probably conclude that the justification could be satisfied but the requirements are not, even though there are 2 negligent people, because it’s not a case where the conduct of each of the two, without the other, could have been sufficient. It’s not a problem of insufficient evidence to allow one to point the finger at one or the other or both for a balance of probability conclusion. That, however, is the implicit meaning of requirements (a) and (b) of the doctrine as summarized in in para. 46(1) of Clements. If this is correct, then the fact that there were two or more tortfeasors, here, isn’t capable of satisfying that aspect of the Clements requirements.

2.  Is there a basis for liability in medical negligence without factual causation that doesn’t depend on the Canadian version of the material contribution to risk doctrine? Not yet. It would be contrary to Canadian tort law. But, as I said, there is authority, elsewhere. Commonwealth authority. U.K.H.L. authority.  The case is Chester v. Afshar, [2004] UKHL 41. It’s been mentioned twice in B.C. decisions reported on CanLII; most recently, in 2011 in Joinson v. Heran, 2011 BCSC 727 at paras. 340-41. Forestalling the second objection first: there’s nothing about the principle – the rationale – of the Afshar majority’s decision, assuming one believes the majority ratio makes sense, that necessarily restricts the ratio to medical negligence based on lack of informed consent.

As to the first objection that the principle in Afshar is contrary to current Canadian tort law – the point made by the trial judge in Joinson – well, that’s what appellate courts are for. But, again, it’s better to start the argument at trial then (have to) start it on appeal. We now have one route to liability in negligence without factual causation proven on the balance of probability. Clements has to be understood as permitting other routes where justice requires.