(Revised & expanded Oct 19; addendum added Oct 21; punctuation and typos fixed Oct 23)

Wolfgang Pauli, the famous physicist, supposedly once said about the contents of a colleague’s paper: “Das ist nicht nur nicht richtig; es ist nicht einmal falsch!” (That is not only not right, it is not even wrong!.)

The ONCA earns a full Pauli for its frolic of law in Sacks v Ross, 2017 ONCA 773.

Not only did the panel:

1. misstate current Canadian law on proof of factual causation (in negligence), and

2. misunderstand the arguments of the treatise writers the panel cited; and

3. fail to refer to other treatises which contradict the panel, at least one of which is, in a very real sense, a treatise specifically about Ontario law dealing specifcally, in about 2 pages, with one of the mistaken arguments the panel made; and

4. misunderstand and mistate the law as set down by the Supreme Court in Clements and Ediger, even Athey;  but

5. the panel somehow completely forgot to mention that, only about nine months earlier, another panel of the ONCA had specifically decided the issue the Sacks panel decided, AND that earlier panel came to the opposite conclusion. That is, that panel specifically approved the analysis of the law as set out by and applied by the trial judge in Sacks. That decision is Surujdeo v Melady, 2017 ONCA 41. The dicussion starts at [94]. It isn’t obiter, either. And

6. even more remarkably, the Sacks panel specifcally quoted from Surujdeo, albeit on another issue. Add to this, the fact that,

7. ultimately, the Sacks panel found that the alleged errors made by the trial judge didn’t affect the correctness of the jury’s decision so that the appeal was dismissed.

I could, easily, extend this list to 11 but why bother. Then I’d have to start making Monty Python and Lewis Carroll jokes, too. However, the panel isn’t functus, yet, so maybe the panel will allow me to save the jokes for a better time. Instead, I will ask a number of rhetorical questions:

How does this happen?

Which research lawyer is to blame?

Why did the panel refer to Linden, Canadian Tort Law, but not Klar, Tort Law? The Linden text may not “use the word [necessary] in [its] specification of the [but-for] test.” The Klar text does. More than 20 times in chapter 11 (the causation chapter) of the 5th edition. I don’t have the 6th edition of Klar published a few months ago at my finger tips to do a similar count.

What about the other previous ONCA decisons, since Clements, accepting the Clements ratio that a but-for cause is a necessary cause?

What happens if the jury asks the judge if the negligence has to be necessary or sufficient?

Are counsel going to be told they can’t use the word “necessary” when making submissions to the jury about the conclusions to be drawn from the evidence? When asking questions of the witnesses?

Can a causative factor be a “real and substantial connection” without being necessary connection?

What does “purposive” mean other than the meaning the judge wants the word to have for the purpose the judge thinks is the purpose? (I’d normally cite H. Dumpty, J., here, but since I said I wasn’t going to make Lewis Carroll jokes, I won’t.)

What does “real” mean? Is that the opposite of “unreal”? Are we now in the realm of “abstract metaphysical theory” when discussing the meaning of “real and substantial”?

Where did “real and substantial” come from? (The panel didn’t cite antecedents, ancestry, anecdotes, sources, etc. I could guess, but rather than that, I suggest you look at my blog in any discussion of strange BC law. But, if that’s so, shouldn’t the panel have cited its sources?)

Is a minor necessary connection a “real and substantial connection.”?

A real and substantial connection would be something that “materially contributed”, right? It needn’t be anything more, right? But it is certainly is something that falls outside the de minimis range, right? Sound familiar; albeit something you’ve not heard as an acceptable explanation for factual causation, in Ontario, for quite some time?

Anybody smell the the odour of Athey material contribution to injury?

But Athey MCI is supposed to be defunct, right?

Ignatius of Loyala is reputed to have said: “Give me the child for the first seven years and I will give you the man.” All of the Sacks panel necessarily spent most of their careers as practitioners, far more than 7 years, while Athey MCI ruled Ontario: see Alderson v. Callaghan, 40 OR (3d) 136, 1998 CanLII 895 (ONCA) and Mizzi v. Hopkins, 64 OR (3d) 365, 2003 CanLII 52145 (ONCA) where the doctrine came to be called “contributory causation”. Loyola’s saying might be true for Jesuit training. It’s not supposed to be true for judicial training, alliteration notwithstanding.

Is the new requirement in Ontario now that the trier of fact must engage in a robust, pragmatic, application of ordinary common sense to find a real and substantial connection (between the negligence and the injury)? (I said I wouldn’t make Monty Python or Lewis Carroll jokes. I said nothing about John Lennon. If I can’t refer to lines in Jabberwocky, then I’ll mention “I Am The Walrus“. As in, with all due respect to the panel, that proposition makes as much sense as Lennon’s “goo goo g’joob.”)

But, now that I think of it, perhaps the search for the meaning of “real and substantial” in the phrase “real and substantial connection” could be combined with a search for the meaning of “gross” in the phrase “gross negligence”. Or, better, a search for the meaning of “common” in the phrase “common sense” (or the portmanteau ‘commonsense’ as it is often written elsewhere in the English-speaking world).

The President of the Surujdeo panel was Strathy CJO. You think he’ll be impressed at the impending need to empanel a 5 judge panel? If you’re an ambitious trial judge asked to chose between the decisions of the Sacks and Surujdeo panels, which do you chose?

As Jon Stewart used to say: ‘just sayin’.

I might, in due course, write something (with even more snark) about this case on my currently moribund blog: http://www.davidcheifetz.ca. However, it’s really “not my job” anymore – if that sounds like “he doesn’t care very much” you’re right – so that depends on whether I can convince somebody whose job it is to say what ought to be said. Those of you who don’t know why I am disinclined should look at the last few pages of my last article on this area of the law. It’s in (2013) 41 Advocates Quarterly. If you know enough to get here, you know enough to find that too.

Addendum

As I mentioned, the panel didn’t cite any precedents, show any antecedents, etc., for the “real and substantial connection” claim [see [118]. Those of you who have bothered to go to my blog will have seen the BCSC “substantial connection” mantra. Coincidentally, there’s yet another very recent BCSC decisoin from a trial judge who should know better. This one is: Zwinge v Neylan, 2017 BCSC 1861 (CanLII), <http://canlii.ca/t/h6prx>. See [44]-[49], especially [45]. If BC jurisprudence is the source of the “real and substantial connection” theory, shouldn’t the panel have mentioned that, too?

I now have now seen the relevant portion of the causation chapter – c. 11 – in Klar, Tort Law, published this summer. The explanation of the but-for test specifically uses “necessary”, as did the identical explanation in the 5th edition – should we say OOPS:

“In most negligence cases, the causal connection between the defendant’s negligent conduct and the plaintiff’s injury is established by the application of the so-called “but for” test. If it can be proved, on the balance of probabilities, that the plaintiff’s injury would not have occurred but for the defendant’s negligent conduct, the causal connection is established. Stated in other words, if the defendant’s conduct can be shown to have been a necessary cause of the plaintiff’s harm, conduct which made a difference to the plaintiff’s status quo ante, the “but for” test is satisfied.” (Klar, Tort Law, 6th, text associated with footnote 11; footnote omitted here).

Isn’t that paragraph at least one good reason why good scholarship required the Sacks panel to also refer at least to Klar? Or at least acknowledge the existence of other Canadian treatises on tort law which could be read to assert a contrary conclusion?

My recollection of what’s in Linden’s text is that there are other sections discussing the but-for test which make it clear enough that the meaning of but-for used in that test is “necessary”; and, that the same position is stated in Fridman et al, The Law of Torts in Canada and Osborne, The Law of Torts. I’ll check that over the next few days as is convenient for me. Now, of course, the mere fact that all of these eminent authors say “X” and the ONCA says “Y” doesn’t mean the Sacks panel is wrong – it also doesn’t mean the moon isn’t made out of green cheese – but it does make one wonder, doesn’t it? Especially since the panel saw fit not to mention any of these.

Oct 21