because I needed a change from “Broken Record #X”.

If you are a regular reader of this blog, you should be able to guess what follows.

Ediger v. Johnston, [2013] 2 SCR 98, 2013 SCC 18 (on appeal from the BCCA, not that that matters)

[28]   This Court recently summarized the legal test for causation in Clements v. Clements, 2012 SCC 32 (CanLII), [2012] 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), [2007] 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)).

Clements v. Clements, [2012] 2 SCR 181, 2012 SCC 32 (also on appeal from the BCCA, not that that matters)

[8]     The test for showing causation is the “but for” test.   The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. 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.  This is a factual inquiry.  If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

(Emphasis in original.)

Bhandal v. Charlebois, 2015 BCSC 2315

[89]        Mr. Bhandal must prove, on a balance of probabilities, that the accident caused his injuries.  The test for causation, established in Athey v. Leonati,1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 at paras. 13-17, is the “but for” test.  This requires Mr. Bhandal to establish that it is more likely than not that but for the accident he would not have suffered the injuries underlying his claim.

[90]        Mr. Bhandal does not have to establish that the accident is the sole cause of the injuries.  So long as a plaintiff proves that a defendant’s negligence is part of the cause of an injury, beyond the “de minimus” range, the defendant will be fully liable for the harm suffered, even if other causal factors, which the defendant is not responsible for, contributed to the harm:  Athey; Blackwater v. Plint, 2005 SCC 58 (CanLII); Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII); Clements v. Clements, 2012 SCC 32 (CanLII); Farrant v. Laktin, 2011 BCCA 336 (CanLII).

…

Conclusion on causation

[115]     In summary, I make the following findings on causation and the current state of Mr. Bhandal’s condition:

•       Mr. Bhandal suffered moderate soft tissue injuries to his neck, back and shoulders in the accident that initially resulted in significant pain and disability, but which largely resolved within about a year of the accident.
•       Mr. Bhandal developed occipital neuralgia as a result of the accident, which causes him some ongoing pain in the back of his head and pain and stiffness in his neck at the base of the skull.  I will address the severity of that pain below, in the non-pecuniary damages section of this judgment.
•       Mr. Bhandal suffered from a pre-existing mood disorder that, more likely than not, is a bipolar disorder.  I am not persuaded that he has suffered a material exacerbation of that mood disorder since the accident.  However, if he has, I am not persuaded that the exacerbation was caused by the accident.

…

Conclusion

[173]     In summary, the damages awarded to Mr. Bhandal are:

Non-pecuniary damages	$	60,000.00
Past loss of income earning capacity	$	90,000.00
Future loss of income earning capacity	$	150,000.00
Loss of housekeeping capacity	$	3,000.00
Cost of future care	$	1,000.00
Special damages	$	7,033.27
Total	$	311,033.27

..

The reasons for judgment total 174 paragraphs.

I leave it to readers who care to read the reasons and decide whether they can identify the basis upon which the the trial judge concluded that the defendant’s negligence was a cause of injury.

We should be able to agree that it is not enough for the plaintiff to establish  that the “defendant’s negligence is part of the cause of an injury, beyond the “de minimus” range.”  Yes, the BCCA seems to have said something to that effect in 2011 in Farrant, but the BCCA does not have the last word. The Supreme Court of Canada does, even if it sits somewhere east of the mountains. Clements and Ediger reiterate: “The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. 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.” (Clements, para. 8)

If you can’t determine what test the trial judge used, what then?

If you can’t, consider this statement from the majority reasons in Clements:

[53]  We cannot be certain what the trial judge would have concluded had he not made the errors I earlier described.  All that can be said is that the parties did not receive a trial based on correct legal principles.  In my view, the appropriate remedy in these circumstances is an order for a new trial.

Bear in mind that the first trial trial in Bhandal took 9 days; it took place in March 2015; and, the accident occurred in April 2011.

Bear this in mind, too, when you consider the implications of the screen captures of the results of the two CanLII searches I just ran in conjunction with the third screen capture. The reason that the search starts on 29 June 2012 is that Clements was released on 29 June 2012. It’s another point I’ve made before. The pictures tell the story. Maybe they’ll save a few thousand words.

I could complain some more but what would be the point?

As the heading for this post asked: who benefits?

DC

15 Dec 2015: I forgot to link to this post I wrote on 22 August 2014. 

16 Dec 2015: One last point. The 16 BC decisions – the 7 is a subset: none are BCCA decisions.