The Ineffable Wisdom of Snell and other matters of greater importance

Ineffable: an adjective meaning “Too great or extreme to be expressed or described in words.”

That, no doubt, is the explanation for this recent bon mot from the British Columbia Court of Appeal, explaining (or attempting to explain, once again), the Snell robust, pragmatic, approach to conclusions on factual causation.

[155]     It is well-settled that, in medical malpractice cases, a trial judge is entitled to take a robust and pragmatic approach to causation which involves an assessment of all of the evidence: Snell v. Farrell, 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311 at 330-331.

Briante v. Vancouver Island Health Authority, 2017 BCCA 148 at para. (CanLII), <>

A naive, but awake in classs, 1L in one of British Colmbia’s law schools might be moved to ask the lecturer: “Does this mean that there are cases where a trial judge is entitled to take a different approach which ignores some of the evidence which has been admitted? For reasons other than the judge rejecting that evidence? Or ignores a relevant fact by not admitting it, in whch case it’s not evidence? That’s what the statement implies, correct?”

The lecturer would have to tell the 1L something such as this: “You’re right. It does, logically, in any sphere of knowledge that requires the use of any form of extrinsically valid logic in order that its decisions be valid. However, what you will learn, soon enough, is that law is not logical at all in the sense you understand logic; indeed, sometimes not logical at all in any sense whatsoever, except in a ‘because I’m the judge, I have the power, and I said so, just like Humpty Dumpty sense.’

I’m not sure what conclusion we should draw from the panel’s “failure”  to describe the Snell approach as one that requires “a robust, pragmatic and common sense” approach.

What I am sure of is that Briane is merely another example of why one can’t provide useful meaning to the cant: because there is none.

Anybody who has bothered to read this far should be wondering why I’ve bothered to repeat what I’ve said too often, before.

It’s because, due to an unfortunate set of events, May in Vancouver means I’m (once again) scheduled to present a lecture on causation: on Friday, May 5 at UBC, mainly to academic lawyers at the  Canadian Law of Obligations 2017: Innovations, Innovators, and the Next 20 Years: It wasn’t supposed to be this way.  I’m replacing another speaker whose presentation would have been far more useful.

The Conference marks the retirement of Professor Joost Blom.  Keynote speeches will be given by SCC Justice Russell Brown, Prof. Bruce Feldthusen, Prof. Lewis Klar, and Justice Allen Linden. There’s a host other eminent types, too, who’d be worthwhile listening to even if they weren’t eminent.

Those of you who aren’t academic lawyers should consider registering and attending if it’s convenient. The other presentations should be worth your time.

Comments are open. Make my day and say “I’m going” or something in that vein.



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