This comment was on CanLII Connects for a time. The CanLII PtB thought the tone wasn’t sufficiently respectful and wanted me to explain, in more detail, what I saw as the problems with the Sacks decision. I wasn’t prepared to change or add, so I removed the comment.
I have fixed some syntax issues and the English translation of the German quotation. Otherwise, it is the same. I haven’t added to or changed the meaning of what was in the CanLII Connects comment.
See https://davidcheifetz.ca/2017/10/23/the-canadian-law-pauli-awards/ for the version I wrote for here. There is some repetition.
(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 . 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.
As I mentioned, the panel didn’t cite any precedents, show any antecedents, etc., for the “real and substantial connection” claim [see . 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 -, especially . 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.
A panel of the ONCA deserves a PAULI Award for its frolic of law on proof of factual causation in Sacks v. Ross, 2017 ONCA 773 (CanLII), <http://canlii.ca/t/h6hsc>.
Why PAULI?: Because the famous physicist Wolgang Pauli once said about a theory in a physics paper: “”Das ist nicht nur nicht richtig; es ist nicht einmal falsch!” (That’s not just not right; it is not even wrong!) https://rationalwiki.org/wiki/Not_even_wrong
Why PAULI? It’s the closest analogy I could think of to the Darwin Awards: the idea being that the decision will not have descendants – i.e., will not be a precedent – so it has, in that sense, killed itself without progeny by eliminating itself from the legal equivalent of the gene pool.
The explanation for the award should tell you my view of the merits of the panel’s analysis of factual causation law principles.
Some readers will know that wrote a comment on that decision. It was available elsewhere on the web for a time. I have deleted it, for now. It will eventually reappear here, within a week or so, perhaps with some additions.
In the meantime, if you really really really need that commentary in the meantime, email me.
In the meantime, those of you who have to read and consider the merits of the Sacks assertions should keep in mind these three points:
1. In January 2017 the ONCA in Surujdeo v Melady, 2017 ONCA 41 clearly, expressly, specifically, etc., dealt with the issue the Sacks panel decided, AND that earlier panel came to the opposite conclusion. (Take a look at the name of the president of the Surujdeo panel.) The judges on that panel had before them, considered, and approved the analysis of the law as set out by and applied by the trial judge in Sacks. The discussion starts at . The discussion isn’t obiter. The issue of what and how to instruct the jury on factual causation in negligence, what the questions to the jury were to be, was the issue in Surujdeo. Surujdeo is a medical malpractice action with multiple defendants tried with a jury. (The plaintiffs succeeded at trial. The appeal was dismissed.) Nonetheless, it isn’t mentioned at all in Sacks even though Sacks cites Surujdeo as authority on a separate issue. This means we have the procedural issue of whether it was open to the panel to validly undertake the analysis in the manner that it did, regardless of what the proper decision was.
2. In Benhaim v. St‑Germain,  2 SCR 352, 2016 SCC 48, a decision which the Sacks doesn’t mention at all, McLachlin CJC, speaking for a unanimous court – there was dissent on a different issue – wrote
“ As I will now explain, Snell and St-Jean held that the ordinary rules of causation must be applied in medical malpractice cases. As prime examples of how the ordinary rules of causation operate in medical liability cases, these decisions are equally relevant in Quebec.”
That comment goes right to the issue of the merits of the panel’s analysis of the law governing proof of factual causation, including the questions and instructions to be given a jury.
3. The seeming claim by the Sacks panel that, essentially, medical malpractice claims with multiple wrongdoers are somehow different in principle, not just more factually complex, requiring not just a more careful analysis but somehow a different analysis in principle than other less complex cases, medical negligence and otherwise. That claim includes this assertion.
“ However, it is worth observing that the Supreme Court has never considered cases beyond the simple.”
I think there’s room to disagree on that claim but decide for yourself. Let’s start, and stop, here, with Benhaim v. St‑Germain and Ediger v. Johnston,  2 S.C.R. 98, 2013 SCC 18 on the medical malpractice side. For other types of case, let’s use Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd.,  3 SCR 1210, 1997 CanLII 307 (SCC).
When I last checked, Ontario, like Quebec and BC, was still part of Canada, both geographically and politically.
I realize I’ve yet to say what it is the panel asserted that is so wrong.
If you’re wondering what it is the Sacks panel actually said, and you need to know, it involves the meaning of the but-for test for factual causation in negligence, the proper form of the jury question(s) on factual causation, and what words to use to tell the jury about the meaning of but-for causation. The panel wrote in 
 There are three general issues:
1. Did the trial proceed on a correct understanding of causation in negligence cases?
2. Were the jury questions and the jury instructions on causation legally correct?
3. Did any legal error in the jury questions or the jury instructions deprive the appellants of a fair trial?
Beyond that? Read the decision. I’m trying to maintain some standards, here, for now.
I did write never say never.
I now return to my currently scheduled life.
Amended 14 Feb 2017
The Owners, Strata Plan LMS 3851 v. Homer Street Development Limited Partnership, 2016 BCCA 371 (CanLII) deals with a number of issues including the nature of the causation requirement, if any, for recovery of damages under the Real Estate Act, R.S.B.C. 1979, c. 356 (subsequently R.S.B.C. 1996 c. 397).
The facts, conclusion, and reason for the conclusion as summarised by the court:
This appeal arises out of the sale of strata units in the Westin Grand Hotel in downtown Vancouver. The Investors purchased their units in November 1996 after receiving a disclosure statement issued under the Real Estate Act. The sales closed in April 1999. At the liability trial, the judge found that the disclosure statement contained a material misrepresentation concerning a projection of anticipated occupancy rates. His conclusion was upheld on appeal. After a 26-day quantum trial, the judge assessed damages at $8,000,000, which represented the fall in the value of the units as of the date of closing. The Developers appeal, raising two grounds: first, that the judge erred in excluding evidence on the issue of reliance on the part of the Investors; and second, that the judge erred in his determination of compensation by choosing the incorrect date to assess the Investors’ losses and by not limiting them to those caused by the misrepresentation.
Held: appeal allowed. With respect to the issue of reliance, the judge did not err in concluding that deemed reliance under the Real Estate Act can only be rebutted when the investor had knowledge of the misrepresented or omitted facts at the time of the investment. Thus, the evidence the Developers sought to lead was not relevant to any available defence. As for the assessment of damages, the judge erred in finding that the Investors were entitled to recover all damages sustained as a result of entering the sales agreements. Section 75(2) of the Real Estate Act, properly interpreted, does not require the Developers to compensate the Investors for losses suffered solely as a result of an external cause, here a change in market conditions, which did not result from the inaccuracy of the representation.
The related paragraphs in the reasons:
 The purpose of the Real Estate Act is to protect the investing public. However, the legislation also balances the needs of the investor community against the burden imposed on issuers: Sharbern SCC at paras. 118–119. Section 75 promotes this purpose by protecting investors from material false representations. It provides the statutory mechanism pursuant to which an investor can hold a developer liable with respect to the representations found in a disclosure statement. Through its deeming provisions it relieves the investor from the sometimes onerous task of proving reliance.
 I see no special reason why the liability of developers to pay compensation under s. 75(2)(b) of the Real Estate Act for a material misrepresentation should extend to losses arising, not from the inaccuracy of the representation, but from market forces. First, a deceit measure of damages is not appropriate as the statute imposes liability in situations far removed from where a developer engaged in fraudulent conduct. Imposing such an obligation would place developers in the role of insurers to investors for losses arising from market forces. This is not the function of the disclosure obligations of developers under the statute, nor is such a result required to serve the statutory purposes underlying disclosure obligations: Sharbern SCC at para. 118.
 Second, in my view, a developer’s requirement to pay compensation for a material misrepresentation under s. 75(2)(b) must be interpreted in light of the nature of its statutory disclosure obligations. The principal statutory obligation placed on developers under Part 2 of the Real Estate Act is to provide full and accurate information in the disclosure statement. A developer is not required to advise potential investors generally.
 I would adopt the course charted by Slatter J.A. in Hogarth. To succeed in an action for compensation under s. 75 of the Real Estate Act, an investor must prove both the material misrepresentation and that a loss would not have resulted if the representation had been true. A developer is not liable to compensate an investor for losses suffered as a result of external causes, such as changes in the market, which do not result from the inaccuracy of the representation.
 In this case, no loss or damage resulted from the inaccuracy of the misrepresentation. Instead, the losses arose from external causes. Thus, the Investors would have suffered a loss even if the representation was true. The loss arose because of a change in market conditions, a risk that was clearly identified in the Disclosure Statement. As the loss arose solely for reasons unrelated to the representation, it is not recoverable against the Developers.
 In the result I find that the Investors have not proven any damages arising from the material misrepresentation. I would allow the appeal and dismiss the action.
[All emphasis added.]
The BCCA’s rationale for this conclusion is that the but-for test governs the causation requirement for claims based on the statute.
 In Hogarth, the Alberta Court of Appeal considered the elements at common law for damages from a negligent misrepresentation. Slatter J.A. noted, at para. 34, that the general test for causation in tort is that a plaintiff must generally establish on a balance of probabilities that the injury would not have occurred but for “the negligence of the defendant”: Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5 (CanLII) at para. 93; Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII) at paras. 21–22; Athey v. Leonati, 1996 CanLII 183 (SCC),  3 S.C.R. 458 at para. 14; and Clements v. Clements, 2012 SCC 32 (CanLII) at paras. 6–8.
 Based on that foundation, Slatter J.A. concluded that in regards to the tort of negligent misrepresentation, a two-part test for causation arose. He found:
 An application of the law set out in these binding authorities to the tort of negligent representation leads to a two part test for causation in negligent misrepresentation. The plaintiff must demonstrate that “but for” the representation, the damage would not have been suffered. This requires proof that but for the representations, the plaintiffs “would not have invested the monies they did”, and that the damage would not have resulted if the representations had been true. If either of these two tests is not met, then the “but for” test is not satisfied. If the plaintiffs would have lost their investment even if the representation was true, then their losses did not occur “but for” the tort. In the words of Clements, there is no correlative relationship of doer and sufferer of the same harm.
 It is true that “but for” making the investment, the respondents would not have suffered any damage. In a factual sense, entering into the investment contracts was one necessary cause of the losses. But the law is not concerned only with causation in fact. “Causation” is a legal concept about the relationship between the tort and the injury that is needed to claim damages: Snell v Farrell, 1990 CanLII 70 (SCC),  2 SCR 311 at p. 326. In order to tie the damage to the misrepresentations, there were two necessary preconditions: entry into the contract, and the inaccuracy of the representations. Where the investor plaintiff suffers other losses that are unrelated to the misrepresentation, the defendant representor is not responsible:
Separation of distinct and divisible injuries is not truly apportionment; it is simply making each defendant liable only for the injury he or she has caused, according to the usual rule. The respondents are correct that separation is also permitted where some of the injuries have tortious causes and some of the injuries have non‑tortious causes: Fleming, supra, at p. 202. Again, such cases merely recognize that the defendant is not liable for injuries which were not caused by his or her negligence. (Athey at para. 24)
The losses suffered by the respondents as a result of the inaccuracy of the representations are distinct and divisible from the losses they suffered as a result of external causes. Under the general rules of causation, the latter are not recoverable.
[Emphasis in original.]
 Slatter J.A. then held that his conclusion was similar to the result in SAAMCO. He indicated that the same approach had also been followed in Australia (Kenny & Good v. MGICA,  HCA 25 at paras. 26, 29, 48, 54–6, 80) and New Zealand (Bank of New Zealand v. Zealand Guardian Trust Co. Ltd.,  1 N.Z.L.R. 664 at 682–683 (C.A.); and Sherwin Chan & Walshe Ltd. (in Liq) v. Jones,  NZCA 474 at paras. 36–41).
[Ehmphasis in para. 37 in original.]
The result is correct. The analysis is broadly correct. However, the analysis is capable of misleading the unwary and the less than expert because of its succinctness and the manner of its presentation. At a glance, the the casual reader might take the conclusion to be that the BCCA found no more than that the plaintiffs had failed to establish, on a but-for meaning necessary basis, that loss was caused by defendants who made the misrepresentation. However, that is not what the BCCA held. The court held merely that the loss was not by the wrongful act of the defendants; that is, the misrepresentation. The court wrote at para. 100: “In the normal course the law limits liability to those consequences which are attributable to that which made the act wrongful.”
In this respect, it is important to note what the panel wrote in para. 82, referring to Rainbow Industrial Caterers Ltd. v. Canadian National Railway Co.,  3 SCR 3, 1991 CanLII 27.
 McLachlin J., as she then was, dissented. In her view, the question was not what the total loss on the contract was but what loss was shown to have been caused by the negligent misrepresentation. She held that if the defendant could show the loss was caused by factors other than the misrepresentation, then the chain of causation was broken. She reasoned at 19:
Tort liability is based on fault, and losses not caused by the defendant’s fault cannot be charged to it.
[Emphasis added.] For what its now worth, the point made by (now) McLachlin C.J., which has always been the correct law, even in British Columbia, is also the point appellants’ counsel made in Hansen v. Sulyma, 2013 BCCA 349 (CanLII). However, the panel either misunderstood or, I suppose we have to assume, felt that on the evidence the loss had to treated as also having been caused by the portion of the defendant’s conduct which was the wrongful conduct because the nature of the loss made it indivisible.
I’d not rely on the BCCA’s understanding of U.K. cases such as SAAMCO because it is ambiguous. There is no problem with that understanding if it is captured by the sentence quoted above form para. 100. However, the first sentence para. 100 is a problem. The full text of paras. 100-101 of Strata is
 As noted in SAAMCO, rules which make the wrongdoer liable for all the consequences of his wrongful conduct are the exception and need to be justified by some special policy.In the normal course the law limits liability to those consequences which are attributable to that which made the act wrongful.
 Southin J.A. highlighted a similar point in Webster v. Ernst & Young, 2003 BCCA 95 (CanLII). After referring to SAAMCO, she observed that there is no “moral foundation” for equating damages from a negligent breach of a duty with damages for fraudulent conduct:
 In that judgment, I take the House of Lords to be saying that one must not carry the “but for” principle too far.
 A reason for not carrying the “but for” proposition too far is that it will lead the law into equating, for the purpose of assessing damages, negligent breach of the duty of care and skill in the management of another’s business with fraud. In my opinion, there is no moral foundation for such an outcome.
However, paras. 100-101 are incorrect if their purpose was to assert that SAAMCO stands for the proposition that there can be liability for negligence at common law without factual causation. I suspect that the BCCA did not quite intend the paragraphs to mean what the paragraphs assert, not the least because what the BCCA said about SAAMCO elsewhere in the reasons, and ; however, this is moot because that conclusion regarding SAAMCO is irrelevant to the end result given that the BCCA found no liability. Southin JA’s point in Webster is not the point in issue here although it highlights the need to not use the but-for test literally.
The Respondents, having succeeded at trial and having lost on appeal, seem to have been rather vexed. They applied to the BCCA seeking to reopen the appeal so that they could obtain an order referring the back to the trial judge for another assessment of damages, rather than dismissing the action. The grounds the Respondents hoped to rely on at the new assessment were new: grounds not argued at trial or on appeal. Unsurprisingly, the BCCA wasn’t impressed. The answer was no: The Owners, Strata Plan LMS 3851 v. Homer Street Development Limited Partnership, 2016 BCCA 491 (CanLII), <>
The respondents apply to re-open the appeal. They submit that their claim should not be dismissed but rather referred back to the trial judge to make damage findings in light of this Court’s reasons. Held: application dismissed. The respondents now seek to raise a point not raised or argued in the original appeal and contrary to the admission made at the case management conference. Having chosen their field of battle and having lost, the respondents are not entitled to a second chance to establish damages.
 With respect, the circumstances here are not exceptional. We are not persuaded that the Court overlooked or misapprehended the evidence in any material respect. The respondents now seek to raise a point not raised or argued in the original appeal and contrary to the admission made at the case management conference.
 The respondents had the onus of proving their damages. They sought to do so by proving the loss of capital value being the difference between what the respondents paid for the units and the units’ value in April 1999. This Court has decided that the loss which the respondents sought to establish did not represent the proper measure of damages for a claim arising under the Real Estate Act.
 The respondents, by way of this application, are seeking a do-over. Having persuaded the trial judge to adopt what that this Court has concluded was an erroneous view, they now want to re-argue damages on an entirely different basis.
 In this case, the respondents, both at trial and on the appeal, chose the field upon which they wish to fight the damages battle. Having now lost that battle, they wish to re-group and fight again. Litigants do not get multiple opportunities to present their case. Having chosen their field of battle and having lost, the respondents are not entitled to a second chance to establish damages.
 We would dismiss the application for reconsideration.
Given the amounts involved, the over / under on leave to appeal being sought from the SCC is zero.
Consider the implications of this statement. Counsel for the Respondents (plaintiffs) would not have filed for reconsideration if counsel thought there was no merit to the new grounds that the plaintiffs planned to argue if the case had been remitted. You should be able to do the math yourself.
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 Supreme Court of Canada has reminded the bar, often enough, of the presumption that trial judges are presumed to know the law that they are required to apply. That’s good enough, I suppose, where the reasons are silent on what the applicable law is but the judge’s conclusion, considered reasonably, is consistent with that law.
But what is the bar supposed to do when judges regularly misstate the law, as set out by the Supreme Court of Canada, when we know, or ought to know, that law has reached BC? Check CanLII and satisfy yourself. You could restrict yourself to BCCA decisions because, after all, they’re binding on BCSC judges, because of what’s sometimes referred to as the big pecker – little pecker rule. (Those of you who follow CJC inquiries into judicial (mis)conduct will know that two judges are offering as the defence for their conduct the assertion that they didn’t know the applicable law. Right. Imagine what most judges would do to counsel who tried that as an explanation for doing something inappropriate during a trial.) But we’re not going to talk about CJC-type judicial misconduct.
We’re going to talk – actually I’m going to write, those of you who care will read along, but none of us are going to “talk” because I’ve not turned comments back on – about a B.C. problem I’ve complained about before. It’s the refusal, unwillingness, inability – use whatever term you want – of some BC trial judges to at least quote the current SCC explanation of the test for proof of causation (factual and legal) in negligence. Instead, what we (I, you, whoever) see is some versmion of something which may or may not have been BC law back in 2007, provided we assume that BC could then and can now have law that’s contrary to what the SCC has said the law was and is.
I suppose I shouldn’t be surprised the problem hasn’t improved since I left BC. After all, it didn’t improve while I was there.
Maybe it’s the case that, sometimes, the misstatement of the law isn’t something the losing side should worry about because it’s clear enough from the evidence accepted by the judge as outlined in the reasons, and the knowledge counsel should have of the evidence that went in, that the result reached is the result required by the current law. Where there’s a jury trial, maybe it’s the case that the result is one that a properly instructed jury probably would have arrived at.
Let’s focus, though, on cases tried by judge alone, if only because those are the cases that usually have reported reasons from the trial judge.
However, sometimes it’s not the case that it’s clear enough that the result is the one required by the current law because there’s no other reasonable alternative, or at least the result that probably would have been reached had the judge instructed himself or herself properly.
 To establish causation for MVA#3 and MVA#4, I consider the “material contribution” test as affirmed and explained in Resurfice Corp. v. Hanke,2007 SCC 7 (CanLII), where the Court reaffirmed the finding in Athey that at times the “but for” test is unworkable: para. 18. I find in the case of these subsequent accidents (MVA#3 and MVA#4) that I cannot hold that “but for” the negligent act of each defendant the injury would not have occurred. In fact, the injuries had already occurred, and would have continued to persist, though it is impossible to say in what degree, absent the subsequent accidents. However, it is clear on the facts that in the cases of MVA#3 and MVA#4, the defendants “breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury,” both of which are required elements of the “material contribution test”: Resurfice Corp. at para. 25. The test also requires that the plaintiff suffered a form of injury which was in the ambit of the risk created by the breach.
 I find this to be the case. Although the accidents did not cause the injuries outright, they both aggravated and exacerbated the plaintiff’s pre-existing injuries and ultimately contributed to his current overall mental and physical state. I find this to be within the ambit of risk created by the negligence of each defendant that led to the respective MVAs. Therefore, causation is proved for MVA#3 and MVA#4.
 The defendants have raised the argument that the depression experienced by the plaintiff is the result of financial stress. While I find the plaintiff’s financial circumstances likely contributed to the stress he experiences, and Dr. Caillier acknowledged this in cross-examination, there is insufficient evidence to prove that it is the sole or material cause of his stress and depression. This is especially true in light of the associated physical ailments and functional changes experienced by the plaintiff in the wake of the MVAs.
 I therefore find that MVA#1 caused the plaintiff’s stroke, and that MVA#3 and MVA#4 exacerbated and reactivated his symptoms, thereby materially contributing to his pain, fatigue, cognitive limitations, loss of memory, stress and depression.
Funny thing is that it’s not 2007 any more. It’s 2016. More importantly, in 2012 the SCC restated the law establishing when the material contribution test is available. That case is Clements. I’m going to assume that most (no all) of you reading this know that. The trial judge knew about Clements. We know that because the trial judge quoted from Clements.
 The “but for” test is the general test for factual causation: the plaintiff must prove on a balance of probabilities that but for the defendant’s negligence, he would not have suffered his injuries. As affirmed by the Supreme Court of Canada in Clements v. Clements,2012 SCC 32 (CanLII) at paras. 8-10, this is a factual enquiry and causation must be established by the plaintiff on a balance of probabilities, having regard for all the evidence.
 The Court in Clements at para. 9, affirmed Mr. Justice Sopinka’s statement on the law of causation from Snell v. Farrell, 1990 CanLII 70 (SCC),  2 S.C.R. 311 at para. 29, where he said that causation need not be determined by scientific precision and that the “but for” test must be applied in a “robust common sense fashion.
So how, then, do we get reasons which don’t mention the later passages in Clements dealing with the Resurfice explanation for the circumstances under which the material contribution test is applicable. I’m not going to quote those passages, yet again. If you’re here, you know how to find them. What I will quote is this from Clements:
 In Resurfice, this Court summarized the cases as holding that a material contribution approach may be appropriate where it is “impossible” for the plaintiff to prove causation on the “but for” test and where it is clear that the defendant breached its duty of care (acted negligently) in a way that exposed the plaintiff to an unreasonable risk of injury. As a summary of the jurisprudence, this is accurate. However, as a test it is incomplete. A clear picture of when “but for” causation can be replaced by material contribution to risk requires further exploration of what is meant by “impossible to prove” (Resurfice, at para. 28) and what substratum of negligence must be shown. I will discuss each of these related concepts in turn.
The Chief Justice then did.
The trial judge did not.
Indeed, one might infer from the reasons that, at least on the day(s) the trial reasons were written at least through the time of their publication, the trial judge did not know the law that the trial judge was supposed to apply.
One might also search on CanLII to see whether there were prior days.
In any event, I leave you with this. Read the reasons, if you care to, and attempt to form a conclusion as to whether, on the evidence recounted by the judge, you’re able to say that the result is justified under the correct statement of the applicable law. Or, perhaps, are you left in this position, again quoting from (the majority reasons) in Clements delivered by the Chief Justice:
 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.
BC counsel, at the least, will know who probably will not suffer, financially, if there is a new trial. I suppose I should not be heard to complain about that. After all (here’s where you get your full disclosure) I was once a practising member of the defence lawyers’ firm, am still on the firm’s letterhead, and, most importantly, I consider the firm’s lawyers my friends.
I’m sure there’s an explanation for what happened. I’m sure there’s an explanation for why this keeps happening in BC. I happen to think there’s no good explanation. You my think otherwise. The virtual floor is yours; just not on this forum. And not with me; here or elsewhere.