Category: Causation
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.
Substantial necessity?
Some useful cases on the but-for test
The counterfactual analysis aspect
A case worth reading, because it accurately explains how the but-for counterfactual hypothetical (i.e., possible, what-if, etc., world) analysis is to be done. (For those who have been paying attention, that’s the analysis for a test that we’ve been told isn’t metaphysical at all, which is one reason why we’re to use it rather than go adventuring with philosophers into abstract metaphysics, or something like that.)
Lee v Minister for Correctional Services, [2012] ZACC 30, 2013 (1) SACR 213 (CC) (11 December 2012) starting at para. 37.
As a colleague put it, the court’s explanation is “far better than anything our Supreme Court has ever come up with”.
One case that isn’t helpful on the “how” of the counterfactual analysis – even if, for other reasons, the result of the case is correct: I make no comment on that point – is Eli Lilly and Company v. Apotex Inc., 2014 FC 1254 at paras. 20-35. I believe that, after you read Lee, if you read Lee, you’ll understand why the discussion in Eli Lilly isn’t helpful. And why the explanation is wrong, even if the conclusion is correct.
The how much evidence is enough aspect – i.e., the Snell robust and pragmatic inference
Another case worth reading is St-Germain c. Benhaim, 2014 QCCA 2207 (CanLII) – see the majority reasons of KASIRER and BÉLANGER, JJ.A (in English).
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.
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.
The 4th Monkey Still in Abstenia 