According to the most recent reminder from the Supreme Court of Canada, the application of common sense in a robust, pragmatic, manner, will  provide the answer to the factual causation question – is the defendant’s negligence more likely than not a necessary cause of the injury – in most cases where a plaintiff alleges that the plaintiff’s injury was caused by negligence for which the defendant is responsible. See Clements v. Clements 2012 SCC 32 at paras. 9, 10, 23, 38, 46(1).

On the other hand, we must not forget that it was once “Western” common sense that witches existed; the Earth was flat, the centre of the universe, and the Sun rotated around the Earth; Heaven and Hell were physical places; diseases were caused by an imbalance of humours; if one could travel fast enough, one could catch light; women were the property of men; Homo Sapiens did not evolve from earlier forms of hominid but has always had its current form; and creation occurred on the night preceding Sunday, 23 October 4004 BCE (by the Julian calendar).

Really.

A good friend reminded me, recently, that there are parts of Canada where some the items in that list are taken as gospel. (He wasn’t referring to Ottawa.)

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As some readers know, the Supreme Court of Canada (the “SCC”) wrote in 2007:  “Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful to catalogue the various debates.” (Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 SCR 333 at para. 20)

About 5 years later, the Supreme Court found it necessary to spill some more ink on the subject because, in its own words, its discussion in Resurfice of at least one very important aspect of the  subject was “incomplete”: Clements v. Clements, 2012 SCC 32 at para. 34.

I plan to spill some more of the electronic equivalent, pixels, to show why it was and still is both necessary and helpful to catalogue (maybe even refer to) at least some of the various debates, and why it would have been helpful if the Supreme Court had been just a bit less dismissive, and more careful, in both Resurfice and Clements.

Pull up a chair and a glass (or more) of your favourite tipple. As ever, these posts assume that the reader has a basic level of familiarity with the subject matter.

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