Not a matter of tomayto or tomahto – Causation In Tort III

Because something that’ll occur on May 5, 2015, in Vancouver B.C., may begin to eliminate the problem, I’ll return to a point I’ve made a number of times, on this site, over the past 3 years.

In Clements v. Clements, [2012] 2 SCR 181, 2012 SCC 32 (see para. 8) and then in Ediger v. Johnston, [2013] 2 SCR 98, 2013 SCC 18 (see para. 28), the S.C.C. stated expressly that the causal relationship between negligence and injury described by the but-for test is one of “necessity” established on the balance of probability.  Notwithstanding that, it is still very common – too common – to find statements in reasons for judgment of British Columbia Supreme Court judges which statements, taken at face value, assert a different meaning even when one or both of Clements and Ediger are cited. (Sometimes neither are. Something else, older, is. Really. That’s a different problem.)

I’ve also written that, in at least some of the reported decisions, one can’t tell – or at least I can’t tell – from the text of the reasons what meaning of “but-for” the trial judge applied in deciding that the required causal relationship existed. Perhaps the trial judge did apply the necessity meaning. Perhaps the evidence required that conclusion even if the judge didn’t decide the causation issue that way. However, I’ve suggested that one can’t tell from the reasons. If I’m right, that’s not, all things considered, a “good thing”, even if does create the possibility of more work for lawyers.

I had decided, honouring the “if one can’t say anything good … ” mantra, to stop complaining, at least on this site, about that tendency in reported BCSC reasons. However, I’ve decided that it’s worth mentioning the accurate summary in a very recent Supreme Court of Ontario decision and two more of the erroneous (in my view) summaries in BCSC decisions.

I’m not going to include quotations. I’ll provide hyperlinked citations.

Suwary v Librach, 2015 ONSC 2100 starting at para. 68

Matias v. Lou, 2015 BCSC 544 starting at para. 21

Singh v. Wu, 2015 BCSC 526  starting at para. 78

For those not inclined to clink on links as they read, the something that’ll occur is the Continuing Legal Education Society of British Columbia’s programme Causation in Tort III.

 

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