Category: British Columbia law

Not a matter of tomayto or tomahto – Causation In Tort III

Because something that’ll occur on May 5, 2015, in Vancouver B.C., may begin to eliminate the problem, I’ll return to a point I’ve made a number of times, on this site, over the past 3 years.

In Clements v. Clements, [2012] 2 SCR 181, 2012 SCC 32 (see para. 8) and then in Ediger v. Johnston, [2013] 2 SCR 98, 2013 SCC 18 (see para. 28), the S.C.C. stated expressly that the causal relationship between negligence and injury described by the but-for test is one of “necessity” established on the balance of probability.  Notwithstanding that, it is still very common – too common – to find statements in reasons for judgment of British Columbia Supreme Court judges which statements, taken at face value, assert a different meaning even when one or both of Clements and Ediger are cited. (Sometimes neither are. Something else, older, is. Really. That’s a different problem.)

I’ve also written that, in at least some of the reported decisions, one can’t tell – or at least I can’t tell – from the text of the reasons what meaning of “but-for” the trial judge applied in deciding that the required causal relationship existed. Perhaps the trial judge did apply the necessity meaning. Perhaps the evidence required that conclusion even if the judge didn’t decide the causation issue that way. However, I’ve suggested that one can’t tell from the reasons. If I’m right, that’s not, all things considered, a “good thing”, even if does create the possibility of more work for lawyers.

I had decided, honouring the “if one can’t say anything good … ” mantra, to stop complaining, at least on this site, about that tendency in reported BCSC reasons. However, I’ve decided that it’s worth mentioning the accurate summary in a very recent Supreme Court of Ontario decision and two more of the erroneous (in my view) summaries in BCSC decisions.

I’m not going to include quotations. I’ll provide hyperlinked citations.

Suwary v Librach, 2015 ONSC 2100 starting at para. 68

Matias v. Lou, 2015 BCSC 544 starting at para. 21

Singh v. Wu, 2015 BCSC 526  starting at para. 78

For those not inclined to clink on links as they read, the something that’ll occur is the Continuing Legal Education Society of British Columbia’s programme Causation in Tort III.

 

Biting the hand: the default framework for factual causation in tort in British Columbia

In Simmons v. Yeager Properties Inc., 2014 BCCA 201 (released on May 20, 2014 so on the BCCA website soon after that) Lowry JA ( A. MacKenzie JA and Goepel JA concurring) wrote:

[8] … The default framework for causation was described in Clements v. Clements, 2012 SCC 32, as follows:

[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. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

In Ediger v Johnston, 2013 SCC 18,  [2013] 2 SCR 98, the unanimous (albeit “only” 7 member panel) agreed, in reasons  written jointly by Rothstein and Moldaver JJ:

[28]   This Court recently summarized the legal test for causation in Clements v. Clements, 2012 SCC 32,  [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,  [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)).

Even if the point in Ediger has been slow to make it this far west, for whatever reason,  there’s now Simmons v. Yeager.

[Link updated to CanLII link – 15 Dec 2014]

 

Worth Reading and Pondering: Briante v. Vancouver Island Health Authority, 2014 BCSC 1511

Some comments on the trial decision, which you’ll find here.

As usual, the focus is on the causation aspect. Based on the reasons as published, the causation issue in Briante was argued only on but-for grounds. It’s worth asking if there was at least one other approach.

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What if it had been the gander?

Van v. Howlett, 2014 BCSC 1404 

[138]     The defendants argue that taking a “robust and pragmatic approach” to causation (see Clements v Clements, 2012 SCC 32; [2012] 2 SCR 181), I should find that Ms. Van’s failure to wear a seatbelt did at least worsen her injuries.  If I do not do so, submit the defendants, it effectively prevents the defendant from ever proving contributory negligence in cases of this nature.  I do not agree.  The expertise available to the defendants to assist in investigating causation was no different from that available to the plaintiff in this or any other case of a motor vehicle collision.

[139]     The “robust and pragmatic approach” commended by the Supreme Court of Canada in Clements is not intended to facilitate an end run around the evidence.  The Supreme Court made it clear in that case that the test for causation remains a “but for” test, and I am quite unable to find on the evidence before me that but for her failure to wear a seatbelt, Ms. Van would not have suffered to the same extent or at all the injuries for which she seeks compensation.  On the contrary, I find that her head, facial and rib injuries, and all of their consequences that are relevant to this enquiry, would have occurred in any event due to the unusual mechanics of this accident.  Like the situation considered by the Court of Appeal in Schenker v Scott, , 2014 BCCA 203, “[g]iven the mechanics of this accident and the nature of the injuries suffered, this is not a case where a seatbelt defence could be made out by relying on common sense inferences” (para 43).

[Emphasis added.]

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