An Alternate Reality: Once Again, British Columbia, Canada

One would hope that if a Canadian trial judge is going to quote or paraphrase any summary of Supreme Court of Canada law, the trial judge would use the Supreme Court’s own summary. This doesn’t require a Homer Simpson palm slap to the forehead for emphasis.

That didn’t happen, again, in a decision a judge of the British Columbia  Supreme Court. Instead, the trial judge used something else from somewhere else that, by almost 4 years after the SCC decision that established the law, should be known to be wrong even in the remotest regions of British Columbia.

The judicial pecking order in Canada is usually clear to jurists outside of the province of the British Columbia. The Supreme Court of Canada is the boss. The BC courts are not.

Once again, quoting from, South Side Woodwork v. R.C. Contracting, 1989 CanLII 3384 (AB QB), a case that needs to be quoted from too often on this blog, with necessary changes indicated by the text in square brackets

[51] Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder.

[52] [Judges of the British Columbia Supreme Court are] bound by decisions of … [the British Court of Appeal] and by decisions of the Supreme Court of Canada. Very simply, Masters in Chambers of a superior trial court occupy the bottom rung of the superior courts judicial ladder. [Judges of a superior trial court occupy the next to the bottom rung.]

[53]  [Judges of  superior trial court]  do not overrule decisions of the [Supreme Court of Canada.]  The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.

Kodelja v. Johal, 2017 BCSC 164, the trial judge wrote:

[76] Causation is established where the plaintiff proves that the defendant caused or contributed to the defendant’s injury. The test to be applied in this case is the general “but for” test: Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458; Clements v. Clements, 2012 SCC 32 (CanLII); Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII); and Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5 (CanLII).

While it is good that the trial judge chose to refer to just SCC cases, it is not good and should be astonishing that that the trial judge failed to state the law correctly. I wrote “should be” because it is not, in fact, astonishing. This happens again and again in British Columbia. There are many examples in the blog and those examples barely scratch the surface of the total.

[The  next section discussing the BCCA Borgfjord decision was added on 8 Feb 2017.]

Before we move to what the Supreme Court of Canada says the law is, let’s look at the most recent BCCA case that I am aware of dealing with proof of factual causation: Borgfjord v. Boizard, 2016 BCCA 317 (CanLII) reasons released 20 July 2016. I mention Borgfjord for 4 reasons: (1) it is a very recent  BCCA case setting out the  applicable law as the BCCA sees it; (2) the reasons were  released in late July 2016;  (3) Kodelja was tried in Sept – October 2016 with reasons released on 1 February 2017; and (4) Borgfjord,  although it has been reported since late July 2016 on both the BCCA’s own website database of cases and on CanLII’s is not mentioned in Kodelja. We have to assume, then, that none of the counsel in Kodelja advised the trial judge of Borgfjord  and it, for whatever other reason, he did not learn of it before completing his reasons.

The BCCA wrote in Borgfjord:

[54]        Causation is a two-step consideration.  First, the plaintiff must establish the damage was caused in fact by the conduct of the defendant: Hussack v. Chilliwack School District No. 33, 2011 BCCA 258 (CanLII) at para. 54.  The test for factual causation was restated by the Supreme Court in Ediger:

[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)).

[55]        Scientific proof of causation is not required; common sense inferences from the facts may suffice: Clements (Litigation Guardian of) v. Clements, 2012 SCC 32 (CanLII) at paras. 38, 46.  However, inferences must be based on proven facts and cannot be simply guesswork or conjecture: Kerr (Litigation Guardian of) v. Creighton, 2008 BCCA 75 (CanLII) at paras. 58‑62; Haase v. Pedro (1970), 1970 CanLII 205 (BC CA), 21 B.C.L.R. (2d) 273 (C.A.) at 279‑80, 305.

[56]        Second, the plaintiff must establish causation in law.  This has been described as proving the defendant was a proximate cause of the loss, the damage was not too remote from the factual cause, or the damage suffered was reasonably foreseeable: Hussack at para. 54.  Overall the inquiry asks whether the harm is too unrelated to the wrongful conduct to hold the defendant fairly liable: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (CanLII) at paras. 11 and 12.

We should be able to agree that the Kodelja version is not the Borgfjord version. We should also be able to agree on which version is supposed to be British Columbia law.

In Borgfjord  the plaintiff had succeeded at trial. The action was dismissed on appeal. Leave to appeal has been sought from the SCC: SCC case 37210. The decision the the leave application is scheduled for release on 9 Feb 2017. SCC news release: 2 Feb 2017;  Borgfjord case 37210.

[End of addition]

Once again – once again because the point should not have to be repeated over and over again, yet it apparently does – in Clements v Clements,  2012 SCC 32,  referred to (albeit incorrectly) in Kodelja, the Supreme Court of Canada wrote at para. 8:

[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

The emphasis is in the original text.

In Ediger v Johnson, [2013] 2 SCR 98, 2013 SCC 18 (CanLII), not referenced in Kodelja – the trial judge referenced cases older than Clements, not younger: one reason for that might be that the trial judge simply “cut and pasted” from plaintiff counsels written submissions, other another incorrect template the trial judge had from a previous instance – the SCC wrote:

[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)).

The trial judge in Kodelja was appointed in 2002. He has been a trial judge for long enough to know better. That he predates Resurfice, so that he was a trial judge back when “caused or conrtibuted” (whatever it meant) was a correct statement of the is no excuse.

It is also no excuse, just should be a greater embarassment, that the British Columbia CIVJI (British Columbia Civil Jury Instructions), updated as recently as February 2016,  still sets out the law gets the law incorrectly. it doesn’t matter than many trial judges of the British Columbia Supreme Court still set out the law incorrectly and seemingly don’t understand it correctly, too. The British Columbia Court of Appeal now gets the law  on this issue right, usually: see, for example, Meghji v. British Columbia (Ministry of Transportation and Highways), 2014 BCCA 105 at [46] and the relevant BCCA cases produced by this easily done CanLII search  starting with the second listed case


To save those of you who care the time required to do that search yourself all you need  to do follow this link: CanLII search results.

The law is what the Supreme Court of Canada says in the published decisions of the Supreme Court of Canada, not what is written on the pages of the CIVJII regardless of how eminent its authors are perceived to be, even when the authors are members of the B.C. judiciary. Paraphrasing from South Side Woodwork, members of the judiciary writing extra-judicially might be higher than lawyers qualified to practice law in that jurisdiction but are still are even lower on the pecking order than Masters in Chambers of a superior court.

This situation in British Columbia has been going on for years, yet the Chief Justices of the of the British Columbia judiciary do nothing about it. Proof exists on this blog.

In R. v. Kusk, 1999 ABCA 49 (CanLII) a panel of the Alberta Court of Appeal wrote about a different instance of judicial recidivism:

[9]     The second reason not to apply the proviso is that many appellate courts have condemned such cross-examination, especially by prosecutors questioning the accused, since at least 1925. We are not aware of any modern authority allowing it. Yet it keeps happening, as the number of modern decided cases shows. In one province (not Alberta), there are so many appellate decisions condemning the practice, but not ordering a new trial, that one wonders whether the prosecutors there think that it is a matter of “Do as I say, not as I do.” Maybe that is why they keep asking the forbidden question. The practice should stop at once, and there is an obvious way to stop it.

[13]    To a person untrained in law and evidence, these false trains of reasoning are highly meretricious. Once that poison is injected into his or her brain, there is probably no antidote. They even lure some with training

The conclusion I draw, since the Chief Justices of the BCSC and BCCA have to know what is going on, is that they are content that this wrong practice continue. What other conclusion ought one to draw?

In case one thinks it does matter what another provincial Court of Appeal found it necessary to say about the issue in very recent decision: Surujdeo v. Melady, 2017 ONCA 41 (CanLII).

[94]      Guidance on the proper approach to formulating such causation questions in a negligence case can be found in the reasons of D. Wilson J. in Sacks v. Ross, 2015 ONSC 7238 (CanLII), [2015] O.J. No. 6980. I adopt the following analysis of D. Wilson J. at paras.13, 15 and 16:

[T]here is no compelling reason not to use the language of causation from Clements and other cases when drafting the questions for the jury on causation. The legal test as articulated by the Supreme Court of Canada is clear: but for the defendant’s negligent act the injury would not have happened.

What was the basis upon which the trial judge in Kodelja decided the issue of factual causation? Consider these paragraphs from the reasons:

[77]        The medical evidence of both sides agreed that Ms. Kodelja suffered soft tissue injury from the Accident.  Both experts have diagnosed the plaintiff with myofascial pain syndrome, which is chronic.

[78]        Both experts have diagnosed the plaintiff with thoracic outlet syndrome.  However, Dr. Salvian opines that it is as a consequence of the Accident.  Dr. Heran says it is not.  He says that the thoracic outlet syndrome was “secondary” to some spontaneous worsening of her symptoms in Mexico.  It is his view that the thoracic outlet syndrome is of “minor clinical significance” and the dominant source of her left arm symptoms is due the ulnar nerve entrapment which is unrelated to the Accident.

[79]        It is the position of the defendant that the plaintiff suffered a mild to moderate soft tissue injury to her neck, upper back, and shoulders, together with headaches and a temporary exacerbation of her pre-existing hip/pelvis injury.  The defendant also submits that if the plaintiff has thoracic outlet syndrome, the symptoms occur infrequently and are non-disabling if and when they do occur.

[80]        In my view, the evidence establishes that Ms. Kodelja suffered whiplash-type injuries, namely soft tissue injuries to her neck, upper back and shoulders, together with headaches.  Her headaches, neck pain and left shoulder pain persist and have become chronic.  They are a result of the Accident.

You will note that the excerpt begins immediately after the paragraph in which the trial judge set out his understanding of the applicable law. There is nothing else in the judgment that necessarily adds to the statement of the judge’s understanding of causation law as it appears in para.76

Are you able to decide, from what you’ve read in the excerpt – or should you choose to do read them the entire reasons –  whether the judge’s decision that the injuries referred to in para. 80 “are a result of the Accident” was on the basis that the accident “caused” the injuries because the accident was necessary for the injuries to have occurred or on some other basis; for example, that the accident “contributed” to the occurrence of the injuries without being necessary for their occurrence. I can’t.

If you claim you can, you might ask yourself why you assert this without having the entire record to review,  given the misstatement of the law? Do you glean that from some other statement of law on a related issue elsewhere that might shed some light on what the trial judge meant in para. 76?

The trial judge wrote in para. 94:

[94] The function of tort damages is to restore a plaintiff back to her original, pre-Accident position. She is not to be compensated in a manner which would put her in a better position than she would have been but for the defendant’s tortious conduct.

Will you claim that that has to be understood to mean that the trial judge understands the meaning of the but-for test, and applied the but-for test in this case, as that test is explained in Clements and you discern this just from the reasons for judgment?

Appeals are from the evidence, not the reasons. The evidence is in the transcript and the exhibits.

According to the  reasons, the trial in Kodelja took 8 days. It’s not likely the cost of the complete trial transcript will be significantly less than $5,000. It’s more likely it be closer to $10,000. Kodelja is a personal injury action arising out of a motor vehicle accident. The award was approximately $265, 500. That amount won’t buy one a house in Vancouver, but it will be a nice down payment on a small apartment. It might be a nicer down payment on larger premises, even a small house, elsewhere in British Columbia.

The plaintiff claimed more than what she was awarded. It doesn’t necessarily follow that trial judge’s apparent misunderstanding of the applicable law resulted in the plaintiff being awarded more than she ought to have received.

Once again, going back to Clements, Chief Justice McLachlin, writing for the majority of stated:

[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.

Without reviewing the transcript, without knowing whether the trial judge’s decision took into account credibility issues and was based on credibility decisions that an appellate court is not in a position to consider adequately, how can any of us know whether the award is within the correct range?

A very good friend who I shall not embarrass by having the friend’s named mentioned in conjunction with this blog referred to British Columbia jurisprudence as “exotic trans-mountaine jurisprudence”. Exotic should not translate into continuously wrong and willfully blind.

Or maybe it does on the alternate facts of British Columbia.



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