Category: British Columbia law

Spot the non-sequiturs and two almost rights don’t make a right

[289]     A finding that a defendant’s conduct has fallen below the requisite standard of care does not necessarily make that defendant liable for the plaintiff’s injury.  The plaintiff must also prove that the defendant’s substandard conduct caused the injury in respect of which the plaintiff is seeking damages.

[290]     The primary test used in determining causation in negligence is the “but for” test.  The plaintiff bears the onus of proving, on a balance of probabilities, that “but for” the defendant’s negligent act or omission, the injury would not have occurred:  Athey v. Leonati,  [1996] 3 S.C.R.; 458 [Athey]; Blackwater v. Plint, 2005 SCC 58 (CanLII), 2005 SCC 58; Clements v. Clements,  2012 SCC 32 [Clements]; Ediger (Guardian ad litem of) v. Johnston, 2013 SCC 18 (CanLII), 2013 SCC 18 [Ediger].  Inherent in the test is the requirement that the injury would not have happened without the defendant’s negligence:  Clements at para. 8; Ediger at para. 28.

[291]     The plaintiff need not establish that a defendant’s wrongful conduct is the sole cause of his injury.  So long as a substantial connection between the harm and the defendant’s negligence beyond the “de minimus” range is established, the defendant will be fully liable for the harm suffered by a plaintiff, even if other causal factors, which the defendants are not responsible for, were at play in producing that harm: Farrant v. Laktin,  2011 BCCA 336; Athey; Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), 2007 SCC 7 [Resurfice].

Chen v. Ross, 2014 BCSC 374

The answers are on the next screen. Don’t peek.

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Broken record time: who’s the boss, or, why invite an appeal?

Gleizer v. Insurance Corporation of British Columbia, 2014 BCSC 1037

[100]     The plaintiff must establish on a balance of probabilities that the defendant’s negligence caused or materially contributed to an injury. The defendant’s negligence need not be the sole cause of the injury so long as it is part of the cause beyond the range of de minimus. Causation need not be determined by scientific precision:  Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17; Farrant v. Laktin,  2011 BCCA 336 at para. 9.

[101]     The primary test for causation asks: but-for the defendant’s negligence, would the plaintiff have suffered the injury? The “but-for” test recognizes that compensation for negligent conduct should only be made where a substantial connection between the injury and the defendant’s conduct is present: Clements v. Clements,  2012 SCC 32.

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[104]     Applying these principles to this case, I must determine whether the MVA caused the plaintiff’s injuries …

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[122]     In conclusion, I find that the defendant’s negligence caused or materially contributed to the plaintiff’s … injur[ies] …

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When I Use A Word …

At some point this year, I might have the fortune to attempt, again, to explain the current state of Canadian tort causation law to a class of law students.

I’ll point out, again, that if one attempts to parse the statements of principle in the cases, they too often not don’t make sense. Or they’re not consistent with statements in other recent cases at co-ordinate levels. Or they’re not consistent with supposedly binding decisions of a superior court.

I’ll emphasize, again, that somehow trial and appellate judges (and juries), more often than not, make a decision that’s defensible on the evidence.

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