Do what we do, not what we say: appeals are from results, not reasons

even if the appellate court also seemingly misstates the law, at least if we give the words used their ordinary legal meaning.

 [2]         First, the appellants assert that the trial judge did not properly charge the jury on the issue of proximate cause and, in particular, failed to charge the jury that they could find Mr. Silvio was solely responsible for his injuries.

[3]         We do not accept this submission.  In the component of his charge dealing with causation, the trial judge explained the “but for” test for causation and told the jury that they could find one or more proximate causes of the incident.  This was consistent with the leading causation case, Resurfice Corp. v. Hanke,  2007 SCC 7, at para. 21, and with the apportionment scheme of the Negligence Act, R.S.O. 1990, c. N. 1s. 3.

[4]         Even if there was an error of law, we would apply s. 134(6) of the Courts of Justice Act and find that no substantial wrong or miscarriage of justice occurred.  The appellants’ theory on this issue depended upon Mr. Silvio having seen that the second barrier had been removed.  The jury’s answer to Question 6 on the Verdict Sheet shows that the jury accepted that Mr. Silvio did not recognize the danger.

Silvio v. 698743 Ontario Limited (J. DiFranco & Son Construction), 2014 ONCA 17

It was, as it happens, entirely apt for the ONCA panel to have referred to para. 21 of Resurfice. The text of that paragraph is:

First, the basic test for determining causation remains the “but for” test.  This applies to multi-cause injuries.  The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred.  Having done this, contributory negligence may be apportioned, as permitted by statute.

However, that paragraph, and the part of Resurfice it comes from, have nothing at all to do with “proximate cause” if, in fact, the ONCA was using “proximate cause” in its standard Canadian legal meaning: “remoteness”.  The aspect of causation that pararaph relates to is proof of cause-in-fact: factual causation.


What the ONCA has to have mean is that the trial judge told the jury, in a valid manner, that the jury could find one or more factual causes, and then explained what that meant. Perhaps he told them that the negligence did not have to be the sole cause, so long as it was a necessary part the facts making up a cause.

But, then, all of us know that’s what the panel meant, right? Because, otherwise, the last sentence of the quotation makes no sense at all.


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