Who to blame? Broken record time
Hinder v. Yellow Cab Company Ltd., 2015 BCSC 2069 is an for damages arising out of injury the plaintiff alleged she sustained in a motor vehicle accident on 16 December, 2010, in Vancouver BC. The action was tried in Vancouver in March 2015. Judgment was rendered in Vancouver on November 2015. The plaintiff succeeded.
If you’re not interested in reading yet another complaint about a trial judge setting out the governing law in a manner that, on its face, is not correct including not referring to the explanation of that law as set out in the recent, governing, SCC decisions, then stop reading now.
The damages award (summarized in para. 196) is a total of $126,000.
1. $60,000 for non-pecuniary loss
2. $15,000 for past loss of capacity
3. $45,000 for future loss of capacity
4. $1,000 for special damages
5. $5,000 for costs of future care.
The defendants position on damages was:
 With regard to damages, the Defendants’ position is that, with the exception of an agreed amount of $1,000 for special damages, the claims made by the Plaintiff are not supported by the evidence and/or the law.
This is the trial judge’s statement of the law and conclusions on causation:
 The Plaintiff bears the onus to establish on the balance of probabilities that “but for” the negligent act or omission of the Defendants, her injuries would not have occurred. The Defendant Driver’s tortious activity or omission need not be the sole cause of the Plaintiff’s injuries, but must be a contributory factor beyond the range of de minimis. The “but for” test is explained by Mr. Justice Major in Athey v. Leonati, 1996 CanLII 183 (SCC), 3 S.C.R. 458 at paras. 13‑17 and elaborated upon in Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII);  1 S.C.R. 333 at paras. 21-23.
 Causation must be established on a balance of probabilities before damages are assessed: Blackwater v. Plint, 2005 SCC 58 (CanLII);  3 S.C.R. 3 at para. 78, McLachlin C.J.C. The purpose of damages is to put the Plaintiff into the position that she would have been in but for the Defendants’ negligence.
 In the present case, the Plaintiff must establish that but for the Defendant Driver’s negligence in driving the cab into her lane of travel as he did, she would not have sustained her injuries.
 Given the Court’s prior findings with regard to the circumstances of the accident, that the Defendant Driver is 100 per cent liable for the accident and that indisputably the injuries for which the Plaintiff now claims were sustained during the accident, the Plaintiff has established causation in relation to those injuries.
Neither of Clements nor Ediger are mentioned. No BCCA case quoting from or merely citing either is mentioned.
If, for the sake of argument, we imagine that the defendants appeal and the judges on the BCCA panel hearing the appeal conclude:
(1) the trial judge misstated the law in para. 71;
(2) there’s nothing else in the reasons that permits the panel to safely conclude that the trial judge understood the law as set out in Clements and Ediger – but-for means “necessary” – and applied that law, notwithstanding para 71;
(3) it can’t be said that the trial judge made unassailable findings of fact which, on the application of the correct law, require the conclusions made by the trial judge; that is, there was no miscarriage of justice on the evidence since the appeal is from the judgment, not the reasons;
(4) so the case is sent back for a new trial
ultimately because of the problem in para. 71, who does the plaintiff blame? The trial judge or her counsel?
It’s true that, about 20 years ago, Mr. Justice Major “explained” the but-for test in Athey. It’s also true that SCC “elaborated upon” the but-for test in Resurfice at paras 21-23, about 9 years ago. However, it’s “truer” that about 3 years ago in Ediger and about 4 years ago in Clements the Supreme Court set out what the but-for test now must be understood to mean. I’ll quote only from Ediger [2013 SCC 18]
 This Court recently summarized the legal test for causation in Clements v. Clements, 2012 SCC 32 (CanLII),  2 S.C.R. 181. Causation is assessed using the “but for” test (Clements, at paras. 8 and 13; Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII),  1 S.C.R. 333, at paras. 21-22). That is, the plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred (Clements, at para. 8). “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” (para. 8 (emphasis deleted)).
I added the bold emphasis on “necessary”. The word was emphasized in Clements. It wasn’t in Ediger‘s quotation from Clements, hence the “emphasis deleted”.
Maybe somebody reading this has a good explanation for why this specific type of problem keeps happening more frequently in British Columbia than anywhere else in Canada, that he or she is prepared to share. “Aether”, slow or otherwise, isn’t an option.