A panel of the ONCA deserves a PAULI Award for its frolic of law on proof of factual causation in Sacks v. Ross, 2017 ONCA 773 (CanLII), <http://canlii.ca/t/h6hsc>.
Why PAULI?: Because the famous physicist Wolgang Pauli once said about a theory in a physics paper: “”Das ist nicht nur nicht richtig; es ist nicht einmal falsch!” (That’s not just not right; it is not even wrong!) https://rationalwiki.org/wiki/Not_even_wrong
Why PAULI? It’s the closest analogy I could think of to the Darwin Awards: the idea being that the decision will not have descendants – i.e., will not be a precedent – so it has, in that sense, killed itself without progeny by eliminating itself from the legal equivalent of the gene pool.
The explanation for the award should tell you my view of the merits of the panel’s analysis of factual causation law principles.
Some readers will know that wrote a comment on that decision. It was available elsewhere on the web for a time. I have deleted it, for now. It will eventually reappear here, within a week or so, perhaps with some additions.
In the meantime, if you really really really need that commentary in the meantime, email me.
In the meantime, those of you who have to read and consider the merits of the Sacks assertions should keep in mind these three points:
1. In January 2017 the ONCA in Surujdeo v Melady, 2017 ONCA 41 clearly, expressly, specifically, etc., dealt with the issue the Sacks panel decided, AND that earlier panel came to the opposite conclusion. (Take a look at the name of the president of the Surujdeo panel.) The judges on that panel had before them, considered, and approved the analysis of the law as set out by and applied by the trial judge in Sacks. The discussion starts at . The discussion isn’t obiter. The issue of what and how to instruct the jury on factual causation in negligence, what the questions to the jury were to be, was the issue in Surujdeo. Surujdeo is a medical malpractice action with multiple defendants tried with a jury. (The plaintiffs succeeded at trial. The appeal was dismissed.) Nonetheless, it isn’t mentioned at all in Sacks even though Sacks cites Surujdeo as authority on a separate issue. This means we have the procedural issue of whether it was open to the panel to validly undertake the analysis in the manner that it did, regardless of what the proper decision was.
2. In Benhaim v. St‑Germain,  2 SCR 352, 2016 SCC 48, a decision which the Sacks doesn’t mention at all, McLachlin CJC, speaking for a unanimous court – there was dissent on a different issue – wrote
“ As I will now explain, Snell and St-Jean held that the ordinary rules of causation must be applied in medical malpractice cases. As prime examples of how the ordinary rules of causation operate in medical liability cases, these decisions are equally relevant in Quebec.”
That comment goes right to the issue of the merits of the panel’s analysis of the law governing proof of factual causation, including the questions and instructions to be given a jury.
3. The seeming claim by the Sacks panel that, essentially, medical malpractice claims with multiple wrongdoers are somehow different in principle, not just more factually complex, requiring not just a more careful analysis but somehow a different analysis in principle than other less complex cases, medical negligence and otherwise. That claim includes this assertion.
“ However, it is worth observing that the Supreme Court has never considered cases beyond the simple.”
I think there’s room to disagree on that claim but decide for yourself. Let’s start, and stop, here, with Benhaim v. St‑Germain and Ediger v. Johnston,  2 S.C.R. 98, 2013 SCC 18 on the medical malpractice side. For other types of case, let’s use Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd.,  3 SCR 1210, 1997 CanLII 307 (SCC).
When I last checked, Ontario, like Quebec and BC, was still part of Canada, both geographically and politically.
I realize I’ve yet to say what it is the panel asserted that is so wrong.
If you’re wondering what it is the Sacks panel actually said, and you need to know, it involves the meaning of the but-for test for factual causation in negligence, the proper form of the jury question(s) on factual causation, and what words to use to tell the jury about the meaning of but-for causation. The panel wrote in 
 There are three general issues:
1. Did the trial proceed on a correct understanding of causation in negligence cases?
2. Were the jury questions and the jury instructions on causation legally correct?
3. Did any legal error in the jury questions or the jury instructions deprive the appellants of a fair trial?
Beyond that? Read the decision. I’m trying to maintain some standards, here, for now.
I did write never say never.
I now return to my currently scheduled life.
For those who care:
You’ll find, at the link, the PDF version of the (revised version) of the PowerPoint slides I used, last month, as part of a lecture titled “A Plea For Coherence: Making Sense of Factual Cause” I gave in Vancouver on May 5, 2017 at UBC’s law school.
The subject shouldn’t surprise some of you: the incoherent state of proof of the jurisprudence on proof factual causation in negligence in Canada.
I have specifically not dealt with the issue of the use of statistical evidence. That is yet another area within the Canadian jurisprudence that needs a Stygian Stables level clean-up.
The “never say never” in the title of this posting refers to the likelihood that, unless there’s a radical change in my foreseeable future, this is last time I’ll write anything focused on the state of the Canadian jurisprudence on this subject.
I am not aware of any reason to expect – meaning any cases in respect of which leave has been granted where the issues ought to be considered – that the Supreme Court will do anything to clarify the various problems in the foreseeable future.
Perhaps this means that what is needed is for some inventive counsel to convince an appellate court to misuse an SCC decision, as plaintiff’s counsel did with Walker Estate in Resurfice; or, for a trial judge or appellate court to accept, as I point out in the paper, that the SCC jurisprudence requires the conclusion that, in Canadian negligence law, events may occur without having causes (and not just in Stoner, B.C.).
I began the published process of attempting to make sense of the Canadian jurisprudence in an article where the subtitle was “The Hunting of the Causative Snark”. Some of you will know that I completed the process about a decade later in an article which might as well have had the subtitle: “The Snark Is A Boojum”.
If you wish, imagine that my May 2017 piece has the subtitle: “Understanding Original Canadian Jabberwocky”.
I’d have used “Original Canadian Gibberish” but Mel Brooks is still alive to complain that “Blazing Saddles” is too good for that association. I’d have to agree. On the other hand, Lewis Carroll is not alive to complain although he’d be right, too, if he could and did.
But who won the war?
“I meant what I said, and I said what I meant.” (Horton Hatches The Egg, Dr. Seuss (1940))
Sometimes, though, if we accept Horton’s statement as true, there’s room to wonder if the judge(s) said what they meant when one considers the consequences of what the judge(s) said to the next case with slightly different facts, even if the result is what the judge(s) seem to have intended in the particular case.
That is, if one applies what the judge(s) said for what they said.
Those of you who know the Quinn v Leathem aphorism might consider it. The rest of you could look it up. It’s on this blog.
The Supreme Court of Canada has reminded the bar, often enough, of the presumption that trial judges are presumed to know the law that they are required to apply. That’s good enough, I suppose, where the reasons are silent on what the applicable law is but the judge’s conclusion, considered reasonably, is consistent with that law.
But what is the bar supposed to do when judges regularly misstate the law, as set out by the Supreme Court of Canada, when we know, or ought to know, that law has reached BC? Check CanLII and satisfy yourself. You could restrict yourself to BCCA decisions because, after all, they’re binding on BCSC judges, because of what’s sometimes referred to as the big pecker – little pecker rule. (Those of you who follow CJC inquiries into judicial (mis)conduct will know that two judges are offering as the defence for their conduct the assertion that they didn’t know the applicable law. Right. Imagine what most judges would do to counsel who tried that as an explanation for doing something inappropriate during a trial.) But we’re not going to talk about CJC-type judicial misconduct.
We’re going to talk – actually I’m going to write, those of you who care will read along, but none of us are going to “talk” because I’ve not turned comments back on – about a B.C. problem I’ve complained about before. It’s the refusal, unwillingness, inability – use whatever term you want – of some BC trial judges to at least quote the current SCC explanation of the test for proof of causation (factual and legal) in negligence. Instead, what we (I, you, whoever) see is some versmion of something which may or may not have been BC law back in 2007, provided we assume that BC could then and can now have law that’s contrary to what the SCC has said the law was and is.
I suppose I shouldn’t be surprised the problem hasn’t improved since I left BC. After all, it didn’t improve while I was there.
Maybe it’s the case that, sometimes, the misstatement of the law isn’t something the losing side should worry about because it’s clear enough from the evidence accepted by the judge as outlined in the reasons, and the knowledge counsel should have of the evidence that went in, that the result reached is the result required by the current law. Where there’s a jury trial, maybe it’s the case that the result is one that a properly instructed jury probably would have arrived at.
Let’s focus, though, on cases tried by judge alone, if only because those are the cases that usually have reported reasons from the trial judge.
However, sometimes it’s not the case that it’s clear enough that the result is the one required by the current law because there’s no other reasonable alternative, or at least the result that probably would have been reached had the judge instructed himself or herself properly.
 To establish causation for MVA#3 and MVA#4, I consider the “material contribution” test as affirmed and explained in Resurfice Corp. v. Hanke,2007 SCC 7 (CanLII), where the Court reaffirmed the finding in Athey that at times the “but for” test is unworkable: para. 18. I find in the case of these subsequent accidents (MVA#3 and MVA#4) that I cannot hold that “but for” the negligent act of each defendant the injury would not have occurred. In fact, the injuries had already occurred, and would have continued to persist, though it is impossible to say in what degree, absent the subsequent accidents. However, it is clear on the facts that in the cases of MVA#3 and MVA#4, the defendants “breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury,” both of which are required elements of the “material contribution test”: Resurfice Corp. at para. 25. The test also requires that the plaintiff suffered a form of injury which was in the ambit of the risk created by the breach.
 I find this to be the case. Although the accidents did not cause the injuries outright, they both aggravated and exacerbated the plaintiff’s pre-existing injuries and ultimately contributed to his current overall mental and physical state. I find this to be within the ambit of risk created by the negligence of each defendant that led to the respective MVAs. Therefore, causation is proved for MVA#3 and MVA#4.
 The defendants have raised the argument that the depression experienced by the plaintiff is the result of financial stress. While I find the plaintiff’s financial circumstances likely contributed to the stress he experiences, and Dr. Caillier acknowledged this in cross-examination, there is insufficient evidence to prove that it is the sole or material cause of his stress and depression. This is especially true in light of the associated physical ailments and functional changes experienced by the plaintiff in the wake of the MVAs.
 I therefore find that MVA#1 caused the plaintiff’s stroke, and that MVA#3 and MVA#4 exacerbated and reactivated his symptoms, thereby materially contributing to his pain, fatigue, cognitive limitations, loss of memory, stress and depression.
Funny thing is that it’s not 2007 any more. It’s 2016. More importantly, in 2012 the SCC restated the law establishing when the material contribution test is available. That case is Clements. I’m going to assume that most (no all) of you reading this know that. The trial judge knew about Clements. We know that because the trial judge quoted from Clements.
 The “but for” test is the general test for factual causation: the plaintiff must prove on a balance of probabilities that but for the defendant’s negligence, he would not have suffered his injuries. As affirmed by the Supreme Court of Canada in Clements v. Clements,2012 SCC 32 (CanLII) at paras. 8-10, this is a factual enquiry and causation must be established by the plaintiff on a balance of probabilities, having regard for all the evidence.
 The Court in Clements at para. 9, affirmed Mr. Justice Sopinka’s statement on the law of causation from Snell v. Farrell, 1990 CanLII 70 (SCC),  2 S.C.R. 311 at para. 29, where he said that causation need not be determined by scientific precision and that the “but for” test must be applied in a “robust common sense fashion.
So how, then, do we get reasons which don’t mention the later passages in Clements dealing with the Resurfice explanation for the circumstances under which the material contribution test is applicable. I’m not going to quote those passages, yet again. If you’re here, you know how to find them. What I will quote is this from Clements:
 In Resurfice, this Court summarized the cases as holding that a material contribution approach may be appropriate where it is “impossible” for the plaintiff to prove causation on the “but for” test and where it is clear that the defendant breached its duty of care (acted negligently) in a way that exposed the plaintiff to an unreasonable risk of injury. As a summary of the jurisprudence, this is accurate. However, as a test it is incomplete. A clear picture of when “but for” causation can be replaced by material contribution to risk requires further exploration of what is meant by “impossible to prove” (Resurfice, at para. 28) and what substratum of negligence must be shown. I will discuss each of these related concepts in turn.
The Chief Justice then did.
The trial judge did not.
Indeed, one might infer from the reasons that, at least on the day(s) the trial reasons were written at least through the time of their publication, the trial judge did not know the law that the trial judge was supposed to apply.
One might also search on CanLII to see whether there were prior days.
In any event, I leave you with this. Read the reasons, if you care to, and attempt to form a conclusion as to whether, on the evidence recounted by the judge, you’re able to say that the result is justified under the correct statement of the applicable law. Or, perhaps, are you left in this position, again quoting from (the majority reasons) in Clements delivered by the Chief Justice:
 We cannot be certain what the trial judge would have concluded had he not made the errors I earlier described. All that can be said is that the parties did not receive a trial based on correct legal principles. In my view, the appropriate remedy in these circumstances is an order for a new trial.
BC counsel, at the least, will know who probably will not suffer, financially, if there is a new trial. I suppose I should not be heard to complain about that. After all (here’s where you get your full disclosure) I was once a practising member of the defence lawyers’ firm, am still on the firm’s letterhead, and, most importantly, I consider the firm’s lawyers my friends.
I’m sure there’s an explanation for what happened. I’m sure there’s an explanation for why this keeps happening in BC. I happen to think there’s no good explanation. You my think otherwise. The virtual floor is yours; just not on this forum. And not with me; here or elsewhere.
because I needed a change from “Broken Record #X”.
If you are a regular reader of this blog, you should be able to guess what follows.