Category: Canadian law

Expert Evidence; Inferences About Factual Causation; Snell v Farrell; Ediger v Johnston

With the end approaching of what would have been, once upon a time, the  “long vacation” and litigators gearing up for the fall court season, it’s time for a fashion tip reminder.

The reminder is that is is no longer the law in common law Canada that, somehow, the  but-for test is to be applied differently in civil cases where expert evidence is adduced on the issue of factual causation, even in those places where it was once fashionable to assert it was; even in those places in common law Canada where some seem to think it is still in fashion to assert it is.

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Proving factual causation: the process of drawing causal inferences

From Russell Brown,* “Cause-in-Fact at the Supreme Court of Canada: Developments in Tort Law in 2012-13” (2014), 64 S.C.L.R. (2d) 327 at 331

(* now a Justice of the Alberta Court of Appeal and Honorary Professor of Law at the University of Alberta; Justice of the Court of Queen’s Bench of Alberta at the time of publication)

       It is worth making two observations about the drawing of a causal inference.  First, there is nothing unorthodox about the proposition that a fact-finder may draw causal inferences, even in the absence of verifying scientific evidence.  Inference-drawing is inherent not only in all causal fact-finding, but in all fact finding.  Just as one might infer from evidence that an automobile made a screeching noise immediately prior to a collision that the driver saw the obstruction just before striking it, one may also infer (or not infer) that evidence of risk, of harm and of the surrounding circumstances is so arrayed so as to support the drawing of an inference of a causal relationship between the risk and the harm – and all without the reassurance of expert evidence.  And, just as the absence of direct evidence that the driver saw the obstruction before hitting it does not preclude an inference that he or she did, the absence of direct evidence verifying a causal link between risk and harm is similarly not determinative.  Fact-finders infer, or they do not infer, and they may do so on evidence that bears only indirectly to the proposition being advanced.[16]

The second observation is that causal inference-drawing is not presented in Snell as some form of alternative or watered-down version of the but for test.[17]  If all fact-finding is necessarily inferential, then fact-finding to the but for standard is also inferential.  So long as the inference is drawn on a balance of probabilities, causal inference is no alternative to the but for test, but is an instantiation of it.  It is how the but for test is to be applied – and not merely in some cases, but in all cases.

[Emphasis added.]

[16] Russell Brown, “The Possibility of ‘Inference Causation’:  Inferring Cause-in-Fact and the Nature of Legal Fact-Finding” (2010) 55 McGill L.J. 1, at 30-35 [Brown, “Inference Causation”].

[17] This was the criticism of Lewis Klar, in Tort Law, 3d ed. (Toronto:  Thomson Carswell, 2003) at 403:  “[w]hile [inference-drawing] may produce a pragmatic solution to a plaintiff’s dilemma in difficult causation cases, it does depart from the traditional “but for” test, and the balance of probability standard.”  This statement does not appear in subsequent editions of Professor Klar’s book.

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No remedy in medical negligence: fault without causation (2)

I’ll outline, in subsequent postings, why, assuming the evidence was as outlined in the Briante v. Vancouver Island Health Authority, 2014 BCSC 1511  reasons, the case could not have succeeded under any other causation analysis that is now correct, or might arguably be, available, under current Canadian tort law; indeed, that allowing it to succeed would have been contrary to what the Supreme Court of Canada held, in Clements v. Clements, 2012 SCC 32, [2012] 2 SCR 181, at paras 7-8 is part of the foundational principles upon which Canadian tort law is based:

[6]      On its own, proof by an injured plaintiff that a defendant was negligent does not make that defendant liable for the loss.  The plaintiff must also establish that the defendant’s negligence (breach of the standard of care) caused the injury.  That link is causation.

[7]       Recovery in negligence presupposes a relationship between the plaintiff and defendant based on the existence of a duty of care — a defendant who is at fault and a plaintiff who has been injured by that fault.  If the defendant breaches this duty and thereby causes injury to the plaintiff, the law “corrects” the deficiency in the relationship by requiring the defendant to compensate the plaintiff for the injury suffered.  This basis for recovery, sometimes referred to as “corrective justice”, assigns liability when the plaintiff and defendant are linked in a correlative relationship of doer and sufferer of the same harm:  E. J. Weinrib, The Idea of Private Law (1995), at p. 156.

(Emphasis in original.)