Over on Slaw, I’ve written a rant, and posted it, too, about yet another judge’s problematic use of “substantial connection” when seemingly discussing the meaning of factual causation in the Canadian law of negligence.
This one isn’t about a B.C. decision. The context is a motion by a defendant, in an Ontario action, to dismiss the action. The motion – an application for B.C. types – failed. I think it’s a safe assumption that the motion judge isn’t a regular reader of this blog, let alone a follower. Besides, the Rockies are in the way.
(Image from taken from a public domain version of the text of Lewis Carroll’s “Through The Looking Glass”. You’ll find it in c. 6.)
I have discussed the case here and here. The SCC did not, as is its current practice, provide reasons for granting leave. However, we can glean what the parties think the issues are, or are not, from these excerpts from the Applicants’ and Respondents’ factums.
When the Supreme Court of Canada says “X” in 2007, and repeats “X” in 2011 adding explicitly that “X does not mean Y but means Z”, it is reasonable to assume (is it not?) that, once word of what was said in 2007 and repeated in 2011 spreads through the “jurisprudential aether”, however long that takes, the judges of the lower courts in Canada will pay attention.
It’s always worth quoting this reminder about pecking orders in the Canadian judicial universe:
 Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder.
 I am bound by decisions of Queen’s Bench judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada. Very simply, Masters in Chambers of a superior trial court occupy the bottom rung of the superior courts judicial ladder.
 I do not overrule decisions of a judge of this court. The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.
See South Side Woodwork v. R.C. Contracting, 95 AR 161, 1989 CanLII 3384 (AB QB)
Given the above, the concept of common sense, meaning whatever it is that common law judges advert to when they call on that concept to provide an explanation for a conclusion, requires us (does it not?) to conclude:
(1) the Court of Appeal of Newfoundland and Labrador would be aware, by now, of what the Supreme Court of Canada declared an aspect of Canadian law to be, in common law Canada,
almost 6 about 8 years ago, or at least about 4 years ago, because about 4 years and certainly about 6 8 years is more than enough time for some medium to transport the information contained in the SCC’s statements from Ottawa to St. John’s;
(2) the same proposition applies to the state of knowledge of lawyers in St. John’s who practice in the relevant area of law; certainly, at least, those professing expertise in the area.
If you accept (1) and (2) what could be the explanation for what happened in the case I’ll quote from immediately after the break?
No, it’s not a case from the province on Canada’s Western coast. Or any of the territories on Canada’s northern coast. Not even a Prairies, Central Canada, mainland Atlantic Canada, or Canada’s smallest province, case.
The Supreme Court of Canada has been offered another chance to provide a useful explanation of the “robust, pragmatic, common sense” approach to the application of the but-for test in negligence. An application for leave to appeal where that could be one of the issues canvassed in the reasons for judgment, if leave is granted, has been under consideration for about 5 months.
Leave to appeal was sought in St-Germain c. Benhaim, 2014 QCCA 2207, reversing 2011 QCCS 4755. The SCC case number is 36291. The SCC case information page indicates that the leave application material went to the leave panel as of May 19, 2015.
Addendum Nov 3, 2015: leave has been granted: 2015 CanLII 69434 (SCC)
An usual aspect of this case is that, although it is a civil law appeal of a Quebec CA judgment, the SCC may consider common law causation principles, too. The majority in the Que CA expressly relied on an inference said to be justified by Snell v. Farrell  2 SCR 311, 1990 CanLII 70 (SCC), as the basis for holding that the plaintiff had established factual causation on the balance of probabilities. The concurring appellate judge held that factual causation had been established on the basis of presumptions mandated by the Que civil law.
The majority wrote:
 We have had the advantage of reading the reasons of our colleague Fournier, J.A. and agree with him in the result that the appeal should be allowed. We agree, in particular, with his analysis that the judge made no reviewable error in her evaluation of the damages suffered by the appellants and that the respondents be condemned, solidarily, to pay the appellants the amounts identified in our colleague’s reasons.
 We have, however, arrived at our conclusion that the respondents’ fault caused the losses suffered by a different route from that proposed by Justice Fournier.
 With due respect for the trial judge, we are of the view that she erred in law in finding that the fault of the respondent physicians was not the probable cause of the losses associated with the death of Mr. Émond. While the judge provided an often exemplary account of the law applicable to causation in the section of her reasons entitled “Principes de droit applicables”, she did not apply the law correctly in her analysis of the evidence.
 Specifically, the judge did not apply what the Supreme Court of Canada has called an “unfavourable inference” of proof of causation against the respondents.  …
[fn 30] The unfavourable inference was described in Snell v. Farrell, 1990 CanLII 70 (CSC),  2 S.C.R. 311 at 330, confirmed in a Quebec medical malpractice setting in St. Jean v. Mercier, 2002 CSC 15 (CanLII),  1 S.C.R. at 491 at 530 (paras. 111-112).
 First, by reason of the physicians’ negligence, it was impossible for the appellants to show scientifically, by direct evidence of staging of cancer, that the fault resulted in a delay in the treatment of the disease that ultimately caused … [É]’s death. The judge should have taken into account the fact that it was the negligence of the respondents that undermined the appellants’ ability to prove the fact that … [É]’s cancer was at an early stage in November 2005.
 Second, the appellants filed in evidence authoritative medical statistics that there was a 78% probability that the cancer was at stage I when it was discovered fortuitously. That “little affirmative evidence”, to use the expression of Sopinka J. in Snell,  served to discharge, prima facie, their burden of proving that Mr. Émond’s cancer was, on the balance of probabilities, at stage I at that time.
[fn 31] Snell, ibid., at 329-330.
 In the absence of proof to the contrary, the combination of these two facts – the impossibility of proving causation by reason of the physicians’ fault and the statistical proof that … [É] was likely at stage I – gave rise to the adverse inference that the negligence had caused the losses connected to his death. The respondents failed to provide a concrete answer to the prima facie statistical proof by showing that … [É] was among the 22% of persons for whom a fortuitous discovery of cancer is at a later, inoperable stage.
 Applying the ultimate burden of proof – which, of course, always rests with the plaintiffs – we are of the respectful view that the judge should have found the unanswered statistical proof advanced by the appellants allowed causation to be inferred, to the disadvantage of the respondents, given the absence of concrete evidence to the contrary.
 With due regard for the trial judge’s opinion, causation was therefore established on the balance of probabilities and the judge should have found the negligent doctors civilly liable for the losses resulting from … [É]’s death.
 We hasten to say, in fairness of the trial judge, that the application of the negative inference in instances of medical liability is rare in Quebec law: indeed, on the facts in St. Jean, it was not applied by the Supreme Court in that case. It bears mentioning that courts have sometimes wrongly confused it with a reversal of the burden of proof, a mistake the judge did not make in her carefully-written reasons.
I mentioned the common law aspect of St-Germain c. Benhaim a few months ago. This link will take you to that post.
While St-Germain has two persons whose separate conduct was held to be faulty and causative, I’m going to go out on a limb and suggest that, on the facts of the case, it should not result in either the consideration or application of any version of a material contribution to risk case as an alternative basis, in a civil law context, for a finding that the causation requirement was or was not satisfied. Anything more than that on this issue is a discussion for another day.
The truth about factual causation issues in most personal injury actions is that, where there’s any issue at all, it’s not one that involves difficult questions of law or any need to venture into realms of philosophy or metaphysics, abstract, concrete or something else. Instead, the issue is whether the evidence is enough to establish that the alleged negligence was a sufficient legal cause of the injury. The evidence may be complicated. The decision may require the trier-of-fact, judge or jury, to make difficult choices, such as who to believe or what conflicting evidence to accept or reject. In the not-trite aphorism that lawyers involved in the dispute resolution portion of the legal system soon learn, the law in a particular case is clear. What isn’t clear is how to apply the law to the facts.
I’m going to mention a 4 articles published in the last 3 years which should interest members of the legal profession, and others, who, for whatever reason, are interested the subject of causation in negligence. These articles may help to clarify, for some readers, some of the murkiness in the current state of Canadian common law case-law governing proof of factual causation in negligence actions.
Don’t worry, I’m not the author of any of them. That means the articles are short enough for convenient reading. Three of the articles are by leading academic lawyers. The fourth is by a lawyer with experience in the Canadian civil litigation, medical malpractice, trenches.
The articles are:
Jane Stapleton, “Unnecessary Causes” (2013) 129 LQR 39.
René Brewer, “The End of Material Contribution to Injury (2013) 42 Adv Q 217.
Jane Stapleton, “An ‘Extended But-For’ Test for the Causal Relation in the Law of Obligations” (2015) Oxford Journal of Legal Studies.
Oxford J Legal Studies (2015)
First published online: March 7, 2015
Ernest Weinrib “Causal Uncertainty” (2015) Oxford Journal of Legal Studies.
Oxford J Legal Studies (2015)
First published online: July 2, 2015
Unless you know somebody, the last 2 are currently available online, only.
I discuss these articles, and their significance to Canadian jurisprudence, after the break. Most of the discussion deals with Professor Weinrib’s article.
Warning: the entire post is about 6,400 words according to Word, but the wording counting tool in the version of Word I’m using counts parts of citations as words, so there’s a bit less than that.