The judgment is probably correct in result, but …

Regular enough readers of this blog know that I tend to harp on the judicial obligation to set out the applicable law correctly.

Some readers of this blog who still remember their university days may remember finding out that it wasn’t enough to get to the seemingly correct answer.  You had to explain, correctly, how you got that answer. You might, depending on what the mistake was, still get a passing grade on the question; however, you might not.

However, lawyers who are in practice soon learn, if they didn’t at law school, the ultimate rule: appeals are from the result – the judgment – not the reasons for judgment. There is no miscarriage of justice if it is sufficiently clear (whatever sufficiently means in the particular case) that the error in issue did not make a difference; that the result is the result required on the facts. The Supreme Court of Canada wrote in R. v. Sheppard, [2002] 1 SCR 869, 2002 SCC 26:

[4]       The appellant Crown contends that “[i]t has been a settled principle of Canadian law that a trial judge does not have to give reasons” (factum, at para. 13 (emphasis in original)).  This proposition is so excessively broad as to be erroneous.  It is true that there is no general duty, viewed in the abstract and divorced from the circumstances of the particular case, to provide reasons “when the finding is otherwise supportable on the evidence or where the basis of the finding is apparent from the circumstances” (R. v. Barrett,  [1995] 1 S.C.R. 752, at p. 753).  An appeal lies from the judgment, not the reasons for judgmentNevertheless, reasons fulfill an important function in the trial process and, as will be seen, where that function goes unperformed, the judgment itself may be vulnerable to be reversed on appeal.

[5]        At the broadest level of accountability, the giving of reasoned judgments is central to the legitimacy of judicial institutions in the eyes of the public.  Decisions on individual cases are neither submitted to nor blessed at the ballot box.  The courts attract public support or criticism at least in part by the quality of their reasons.  If unexpressed, the judged are prevented from judging the judges.  The question before us is how this broad principle of governance translates into specific rules of appellate review.

[33]  The appellant relies on this statement as establishing a simple rule that trial judges are under no duty to give reasons, but it seems to me, on the contrary, that this Court did expect trial judges to state more than the result.  McLachlin J. anticipated at least “their conclusions” on the main issues (though perhaps not “collateral” issues) at least “in brief compass”.  Further, as pointed out by O’Neill J.A. in the court below, the observations in Burnswere substantially qualified by the use of the words “all”, “general”, “merely”, “all aspects”, “in itself”, “every aspect”, “in brief compass”, and “collateral aspects”.  What was said in Burns, it seems to me, was that the effort to establish the absence or inadequacy of reasons as a freestanding ground of appeal should be rejected.  A more contextual approach is required.  The appellant must show not only that there is a deficiency in the reasons, but that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in a criminal case.

[Emphasis added in para 4; underlining emphasis added in para. 33; other emphasis in original in para. 33.]

R. v. Sheppard applies in at least some areas of private law, includes claims for damages in tort and contract: see Cojocaru v. British Columbia Women’s Hospital and Health Centre, [2013] 2 SCR 357, 2013 SCC 30Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 SCR 129, 2007 SCC 41 at paras. 100-101; and, at the provincial appellate level, including: Bunan v. Toronto-Dominion Bank, 2015 ONCA 226 at para. 20 (” … the test on appeal is whether any deficiency in the reasons has occasioned prejudice to the exercise of [the appellant’s] legal right to an appeal” [internal quotations marks omitted]); Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231, 2015 ONCA 520

[30]      Having concluded that the reasons of the Small Claims Court were facially incapable of appellate review, the Divisional Court was obliged to consider the record before the trial judge to determine if the reasons were more comprehensible when read in the context of this record.

[31]      The level of requisite detail in reasons will be lessened “[w]here the record discloses all that is required to be known to permit appellate review”: Hill v. Hamilton-Wentworth Police Services Board, 2007 SCC 41 (CanLII), [2007] 3 S.C.R. 129, at para. 101. If a detailed record is available, the appellate court should not intervene “simply because it thinks the trial court did a poor job expressing itself”: R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869, at para. 26.

See also Paragon Capital Corporation Ltd. v Morgan, 2014 ABCA 363 at paras. 47-49; Wadden v. BMO Nesbitt Burns, 2015 NSCA 48 at para. 63. This link will take you to a CanLII search result for appellate decisions across Canada over the past year (Sept. 2014 – Sept. 2015). Change the date filter to increase the range.)

Is there at least some inconsistency between the statements in the second and third paragraphs I wrote above? Yes. Welcome to the legal system. It’s called circular breathing: the ability to suck and blow at the same time.

More after the break.

Timlick v. Heywood, 2015 MBQB 148 (CanLII) is an example of a case where, based on what’s in the reasons, the result is probably the correct result, in the sense that it is the result required by the law and the facts. However, the explanation that’s given for the result is partially wrong. On the facts of the case as set out in the reasons, the error is probably irrelevant. The explanation is wrong in a way that that should not have occurred but the result is still correct.

Nonetheless, if this had been a torts examination question, I’d have given the answer a D, maybe a C- if I were feeling generous.

In Timlick, the plaintiff was born with a medical condition which, ultimately, resulted in significant physical and mental disabilities. There was significant delay in the diagnosis. He was born in 1983. The problem wasn’t diagnosed until 2007. The reason for the delay amounted to negligence by at least one physician responsible for Mr. Timlick’s care.

The relevant events occurred in Manitoba. Manitoba’s limitation of actions legislation (now The Limitation of Actions Act, CCSM c L150, s. 14) allows the Manitoba superior court (the Court of  Queens Bench) to grant leave to a person, in certain circumstances, to commence an action notwithstanding the expiry of the limitation period applicable to that person’s claim against the proposed defendants.

Mr. Timlick applied for permission to sue three physicians who, he alleged, had been negligent in failing to diagnose his condition. He was granted leave only as against one of the three: Dr. Heywood. The reasons for that decision are reported: Timlick et al. v. Heywood et al., 2011 MBQB 40 (CanLII). The stated reason why the application failed against the other two physicians, accwas that Mr. Timlick did not adduce any evidence to show that the other two physicians might have been negligent. The evidence adduced on the application applied only to Dr. Heywood. As a result the application succeeded against him but was dismissed against the other two physicians : see paras. 14-16 and 31-32 of the 2011 reasons.

Now to the present: the action against Dr. Heywood reported in the 2015 reasons.

The issue was whether Dr. Heywood’s delay in diagnosing the condition was negligence and, if so, what injuries were caused by that delay in diagnosis. The trial judge held that Dr. Heywood was negligent and that some, but not all, of the disabilities from which Mr. Timlick suffered were caused by that negligence. There were some disabilities which would have occurred even if the negligence had not occurred.

The trial judge decided the causation issue using the but-for test, applying Snell: see paras 22-25, 28-50. I agree with that conclusion, on the facts as set out in the reasons.

The trial judge rejected the plaintiff’s alternative argument that the material contribution (to risk) test applied: see paras. 26-28. I agree with the conclusion that that test did not apply. The problem lies is the trial judge’s statement of the law.

[27]      Jason, relying on Resurfice Corp., argues that this is one of those exceptional cases where he should be able to recover on the basis of “material contribution to risk of injury”, without showing factual “but for” causation.  He says this is because Dr. Heywood’s negligence in failing to diagnose his condition is the reason he has difficulty in establishing “but for” causation.  I do not agree.  This is a simple single defendant case.  As McLachlin C.J. pointed out in Clements:

[42]   … courts in Canada have not applied a material contribution to risk test in a case with a single tortfeasor.

In any event, I am satisfied there are no special circumstances in this case which would justify disregarding the “but for” test.  It would not offend basic notions of fairness and justice to deny liability applying a “but for” approach.

[28]      It is important to bear in mind that Dr. Heywood’s failure to act did not cause Jason’s hydrocephalus.  It was a pre-existing condition.  It was caused by the tumour.  The totality of the evidence establishes that even if the hydrocephalus had been diagnosed while Jason was an infant, the outcome probably would have been much the same.  Under the circumstances, the application of the “but for” test is fair and just to both parties.

I hope that, at this stage plaintiff’s counsel did not rely on Resurfice’s 2007 statement of the requirements for the application of the what material contribution to risk doctrine, since those were changed, in 2012, by the Supreme Court (or Canada) in Clements.

More than that, though, both the reason plaintiff’s counsel seemingly proffered for the application of the the material contribution to law test, and the trial judge’s rejection, are flawed.

Let’s deal with the reason that, we’re told, plaintiff’s counsel argued: “because Dr. Heywood’s negligence in failing to diagnose his condition is the reason he has difficulty in establishing “but for” causation.” I suppose that, if we substitute “impossible” for difficulty, we see the outlines of what seemed to be the first requirement for material contribution to risk as explained in Resurfice at para. 25:

[25]   First, it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test.  The impossibility must be due to factors that are outside of the plaintiff’s control; for example, current limits of scientific knowledge. ….

However, according to Clements that’s not Canadian law any more.

The first requirement, summarized in para. 46(2) of Clements is the presence of multiple negligent persons all of whose conduct could, individually, have been a but-for cause.

[46(2)]       Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.

That takes us to the next problem in the trial judge’s explanation. Go back to para. 27 of the reasons, quoted above. It contains this:

… This is a simple single defendant case.  As McLachlin C.J. pointed out in Clements:

[42]   … courts in Canada have not applied a material contribution to risk test in a case with a single tortfeasor.

There’s a difference between a “single defendant case” and a single tortfeasor case, in the sense of problem.

The Clements explanation of the requirements for material contribution to risk should not be understood to require the plaintiff to name all of the alleged tortfeasors. The reasons include the most basic: neither paras. 42 or  para. 46(2) require that.

Why is this misstatement problematic in Timlick, for the validity of the trial judge’s analysis, apart from being, ultimately, seemingly, an irrelevant error of law?

Because there’s nothing in either set of Timlick reasons that provides an answer to the question: were the other physicians, in fact, negligent? Go back to the 2011 reasons in the Timlick application for leave to commence the action. All we know from those reasons is that no evidence was led regarding the negligence of the other physicians. What we might conclude, too, from the reasons in the Timlick trial, plaintiff’s counsel did not argue that the other physicians had been negligent. That’s because, if he had, one would think the trial judge’s explanation for why the Clements material contribution to risk test did not apply would have been different. The trial judge would have referred to para. 46(2) of Clements, which isn’t quoted or referred to in the reasons.

So, it was not just that “[i]t would not offend basic notions of fairness and justice to deny liability applying a “but for” approach.” It was that s. 46(2) of Clements could not be satisfied on the facts, on the assumption that the evidence before the trial judge dealt only with the negligence of Dr. Heywood. Dr. Heywood didn’t point any fingers at anybody else. In fact, the only finger-pointing, of any sort, by anybody, was the plaintiff against Dr. Heywood.

The problem in  Timlick is an example of the problem in Snell. The physician’s negligence could have created difficulties for the plaintiff amassing sufficient evidence to establish factual causation, under but-for, on the balance of probabilities. That, seemingly, is exactly the argument made by plaintiff’s counsel: “He says this is because Dr. Heywood’s negligence in failing to diagnose his condition is the reason he has difficulty in establishing “but for” causation.” The trial judge rejected that as the basis for resorting to the material contribution doctrine which, in any event, was not needed because the evidence satisfied the requirement for the but-for test.

Why have I bothered writing about an error that didn’t matter to the result?

Because, while the action succeeded, the plaintiff’s award was small. Most of the plaintiff’s claims were dismissed on the basis that the physician’s negligence did not cause them, in the but-for sense: they were not the result of the delay in diagnosis but would have occurred in any event. But, we may have an aggrieved losing side where, on their face, the reasons for judgment contain an error of law.  I suggest that error is irrelevant. Others might disagree. Given the amounts involved, appeal(s) might occur.

Principal sometimes trumps principle.

Apart from that, some lawyers and judges read reasons for judgment. Mistaken statements of law tend to be perpetuated.

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