I’m not in Kansas any more. I don’t have to pull my punches.

1.   An existing WTF

Wahid v. Caporusso, 2016 BCSC 1743 would be an 11 (eleven) on the WTF scale for BC trial judges misstating the law governing proof of factual causation in tort, even if we allow that this particular trial judge is (1) consistent in misstating the law and (2) for whatever reason, there seems no inclination in the BCSC trial judge hierarchy to do anything about this.

2.    A possible WTF but let’s hope not because (a) I don’t need the finger exercise (b) the Cdn legal system doesn’t need another 15 years or less rehash of the Athey-Resurfice-Clements cock-up: i.e., no we didn’t actually mean what you think we meant, even though that’s in fact what we wrote, and what we later said we meant about we wrote, and even though we chose to allow you to believe that that’s what we meant about we wrote, and …  you get my point – I’m too old for this; and (c) litigants shouldn’t have to pay for the inability (for whatever reason) of the SCC to provide clear direction to the (generic) members of the legal profession who they know will attempt to take advantage of any ambiguity in whatever it is the SCC says, even perceived ambiguities which do not exist because there’s no relevant risk to client (or counsel) if the argument is rejected. It’s the chicken-soup home remedy for anything that ails you: it may not help but it won’t hurt.

The SCC has announced that it will deliver reserved reasons for judgment in Benhaim v St-Germaine, SCC case number 36291, on November 10.

Nov 11 – Addendum – in reasons released Nov 10, the appeal was allowed by a 4-3 majority: Benhaim v. St‑Germain, 2016 SCC 48.

On the one hand, it is certain from what the majority wrote that it believed that ALL it was, for the common law, is restating existing law (by clarifying) how Snell is to be understood on the basis that the Que CA misstated that law.

On the other hand, on first and second rereading, the majority again, in what isn’t a necessary part of the ratio, misstated the meaning and requirements for proof of factual causation under the but-for test in a way that is explicitly contrary  to what Athey said, and what Clements has to be understood to actually mean, even though the misstatement arguably appears in Clements too. The misstatement is VERY defendant friendly. Of course the SCC can’t have meant what the words literally mean: the plain Canadian English meaning, in the context the words appear. But the words are there.

Benhaim is an appeal from a decision of the Que CA which, although a civil law case, has the potential to (1) be irrelevant to any common law issue in any way relating to proof of factual causation in tort (2) help clarify some issues relating to proof of factual causation in tort and (3) make an even bigger bldy blding (I’m in the UK now, I’m learning) mess of the situation than it is, now. As of writing, however, the reasons haven’t been released to the public. They’re not on the SCC website.

Benhaim is not a common law decision and does not arise in a common law context. However, based on what science tells us about the the laws of reality – the classical physics and quantum mechanics laws which govern the operation of the visible universe (except perhaps in BC and parts of the USA) – these laws are the same in common and civil law jurisdictions. If there’s no one about in the quad, nobody will hear the tree fall whether the quad is in Ottawa or Hull (or Quebec or any other place east of the Alberta – BC border.

In Benhaim,  the majority judgment in the Que CA relied on common law principles in holding that factual causation was established.

The formal technical niceties (snicker) of proof of factual causation aside, if a trial judge in a common law province or territory of Canada believes that the law governing the issue to be decided isn’t settled, and there is a SCC pronouncement on a similar problem in Quebec law, there’s a good chance that trial judge will decide that pronouncement is persuasive. If the problem exists and counsel don’t know about the SCC judgment, many might say (all should say) that there’s good reason to believe counsel did not know the law adequately.

I put BC aside because, at the moment (see WTF item 1 above and previous WTF and similar posts on this blog) it appears acceptable in the British Columbia Supreme Court for judges and trial counsel to

  1.  Generally ignore what the SCC has said the law is supposed to be at least when it comes to stating what one believes the law to be
  2. Counsel to misstate current Cdn law – meaning the law established by the Supreme Court of Canada – so long as they quote a BCCA decision (and even if they don’t but merely quote the incorrect statements of other trial judges, or the judge hearing the case) and
  3. BCSC trial judges to do the same, so long as they refer to other misstatements by other BCSC trial judges, or their own, and
  4. BCSC trial judges to deliver reasons where, apart from the trial judge’s incorrect statement of the law, it’s clear or at least equally likely as not that one can’t tell accurately, from the reasons what law the trial judge applied to make the decision on factual causation AND on the face of the reasons it can’t be said that the conclusion reached by the trial judge is the result the trial judge ought to have made had the trial judge applied the correct law, and
  5. without a complete review of the evidence in the record, who knows if the decision is correct and
  6. what does on do if the case was tried by a jury and
  7. The Canucks are going to be even worse than the Leafs. The Lions are better than the Argos but, in the level of who cares, that’s barely a 1.


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