Occams Razor, Hanlons Razor
This is a small test to see if anybody in the Canadian legal profession who ought to read this blog reads this blog and pays attention.
I doubt it – because the existence of this blog, and its usual content, is some evidence to the contrary – but I’m prepared to be surprised.
Consider this argument. Feel free to explain why it is flawed, if you think it is and believe you can.
If you can’t, then perhaps you’ll explain why you won’t accept it.
1. Factual causation exists where conditions exist sufficient to satisfy the applicable physical laws required for those conditions to cause – to bring about the existence of – some consequence.
2. A but-for causal relationship is nothing more than a description of a sufficient causal relationship in an instance where there is no other sufficient causal relationship. Counterfactual analyses are implicit – meaning they are necessarily undertaken, as required – in any valid analysis of sufficiency.
3. It necessarily follows the but-for test (whatever it means) is not needed to identify instances of factual causation.
4. It necessarily follows that where but-for (whatever it means) is used, in law, as a test for causation, it is used for some purpose other than identifying factual causation. This follows because we have already identified the existence of one or more factual causes.
5. In law, in the context of causation, the only other purpose the but-for test could have is assigning legal responsibility.
Cue Homer Simpson.
Anybody here see the houses of cards falling down?
The 4th Monkey Still in Abstenia 
I’m a practising lawyer in Canada. Not sure if I ought to be reading this log. Probably not paying close enough attention. Whatever. Here is how I understand / critique your argument:
Factual causation (whatever that is) exists where the defendant’s wrong is part of a set of conditions sufficient to bring about (in a physical laws sense) a consequence (e.g., harm to the plaintiff).
A but-for causal relationship is more restrictive. It requires that the defendant’s wrong is part of the only set of conditions sufficient to bring about (in a physical laws sense) the consequence.
It necessarily follows the but-for test (whatever it means) is not needed to identify instances of factual causation.
It does not necessarily follow that where but-for (whatever it means) is used, in law, as a test for causation, it is used for some purpose other than identifying factual causation. This is because the but-for test will identify factual causation in all cases where the defendant’s wrong is part of the only set of conditions sufficient to bring about (in the physical laws sense) the consequence. The but-for test will fail to identify factual causation where conditions that do not include the defendant’s wrong are sufficient to bring about the consequence. This does not mean the but for test is “used for” (in the sense of deliberately applied with the result in mind) some purpose other than finding factual causation. It does imply that (a) the “but for” test is not a universal test of factual causation and (b) the “but for” test is “useful” for some purpose other than identifying factual causation (i.e., distinguishing between instances of factual causation where the defendant’s wrong is and is not part of the only set of conditions sufficient to bring about the consequence).
In law, in the context of causation, another useful purpose of but-for causation is assigning legal responsibility. In particular, where the defendant’s wrong is part of one set of conditions, among two or more such sets, sufficient to bring about the consequence, a but-for causal relationship does not assign legal responsibility to the defendant. That this is the only other purpose of but-for causation does not follow from any logic, but I am curious to know if anyone thinks there are other purposes.
I am sure many smart people have written extensively about why the legal test for factual causation should or should not assign legal responsibility in addition to establishing factual causation. I am also sure there is much written about why it is good or bad that the law in some peculiar cases does not require the “but for” test to establish factual causation in law (e.g., in all those asbestos cases in the UK).
Dear SCL
Yes, you ought to read the blog. It’s like chicken soup. It might not help but …
Dear SCL
Yes, you ought to read the blog. It’s like chicken soup. It might not help but …
And, it’ll provide a few moments of respite from more important activities such as playing Spider Solitaire and drying your nails.
I’ve numbered your paragraphs and separated the sentences as needed in order to make replying easier and clearer. My interpolations in your paragraphs are in capitals.
Comment: ** substitute “conduct or the conduct for which the defendant is responsible” for “wrong”. Whether the conduct is right or wrong is irrelevant to the factual causation question.
Comment: a necessary part of the set. That’s the point of the NESS test
Comment: yes
Comment: If the “not” is intended, you’ve misstated my point. It does necessarily follow.
(YOU) This is because the but-for test USED IN THE ORTHODOX MANNER will identify factual causation ONLY in all cases where the defendant’s wrong is A NECESSARY part of the only set of conditions sufficient to bring about (in the physical laws sense) the consequence.
Comment: words in capitals added
(YOU) The but-for test will fail to identify factual causation where conditions that do not include the defendant’s wrong are sufficient to bring about the consequence.
Comment: yes
(YOU) This does not mean the but for test is “used for” (in the sense of deliberately applied with the result in mind) some purpose other than finding factual causation.
Comment: the only purpose that the but-for test currently has, according to the the law of all common law jurisdicitions, is to identify factual causation. My point was that if the b-f test (whatever it means) doesn’t actually identify factual causation, then whatever it does is something other than what the user thinks it does.
In the context of causation law, that would have to be assigning responsibility. But, that’s silly (I’m being polite) when you stop and think about it.
(YOU) It does imply that (a) the “but for” test is not a universal test of factual causation and (b) the “but for” test is “useful” for some purpose other than identifying factual causation (i.e., distinguishing between instances of factual causation where the defendant’s wrong is and is not part of the only set of conditions sufficient to bring about the consequence).
Comment: B-F isn’t, in fact, for reasons I’ve given, a unique (separate) test for factual causation at all,. It’s merely a label for one instance of the sufficiency analysis.
You don’t need the but-for test to decide if there’s only one instance. The fact that there’s only one instance means this instance would satisfy a but-for test but that’s the same as saying when we have six then we have half a dozen.
The wrongful conduct either is or isn’t a part of any one of the sufficient sets.
(YOU) In law, in the context of causation, THE ONLY OTHER RELEVANT another useful purpose of but-for causation WOULD BE is assigning legal responsibility, IF THIS MADE SENSE WHICH IT DOESN’T FOR THE REASONS ABOVE. In particular, where the defendant’s wrong is part of one set of conditions, among two or more such sets, sufficient to bring about the consequence, a but-for causal relationship does not assign legal responsibility to the defendant. That this is the only other purpose of but-for causation does not follow from any logic, but I am curious to know if anyone thinks there are other purposes.
Comment: As above.
It necessarily follows if, in fact, what the but-for test does do is NOT identify factual causation
Actually, the other ‘valid’ purpose is supporting the realms of academic literature supporting the but-for test or the variations or qualifications offered in attempts to save it. (See publish or perish)
I am sure many smart people have written extensively about why the legal test for factual causation should or should not assign legal responsibility in addition to establishing factual causation.
Comment: Yes: Orthodox modern scholarship is careful to separate the functions of identifying factual causation for the function of assigning legal responsibility. That’s because responsibility is a legal question which depends on right or wrong, or illegality or illegality. Responsibility, or scope of responsibillity, or scope of liability – aka labels such as remoteness or proximate cause- is irrelevant to factual cause.
(YOU) I am also sure there is much written about why it is good or bad that the law in some peculiar cases does not require the “but for” test to establish factual causation in law (e.g., in all those asbestos cases in the UK).
Comment: Yup.
Remarkably, the SCC failed to mention any of it when it created the Canadian version of the MCR test in Resurfice; in fact, it didn’t even mention the UK cases.
Thanks for replying.
DC
By the way:
Back in the all or nothing days when lawyers babbled about “causa causans” or “sine qua non” or “efficient” or “direct” or “proximate” or “remote”, or “last clear chance” when talking about factual causation, it was clearer that the but-for test was being used to allow the court to assign legal responsibility – liability when applied to a defendant – to the person the court thought ought to be responsible.
The blog’s publication’s page (there’s a link on the menu at the right) now has a copy of my 2013 article that I hoped might help to start some BC judges and lawyers down the correct path. Judges are, after all, supposed to get to the correct decision the correct way. As you’ve seen from this blog, I clearly haven’t been entirely successful, assuming the article made any difference at all.