Category: Civil Litigation
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.
Biting the hand: the default framework for factual causation in tort in British Columbia
In Simmons v. Yeager Properties Inc., 2014 BCCA 201 (released on May 20, 2014 so on the BCCA website soon after that) Lowry JA ( A. MacKenzie JA and Goepel JA concurring) wrote:
[8] … The default framework for causation was described in Clements v. Clements, 2012 SCC 32, as follows:
[8] The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.
In Ediger v Johnston, 2013 SCC 18, [2013] 2 SCR 98, the unanimous (albeit “only” 7 member panel) agreed, in reasons written jointly by Rothstein and Moldaver JJ:
[28] This Court recently summarized the legal test for causation in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181. Causation is assessed using the “but for” test (Clements, at paras. 8 and 13; Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, at paras. 21-22). That is, the plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred (Clements, at para. 8). “Inherent in the phrase ‘but for’ is the requirement that the defendant’s negligence was necessary to bring about the injury — in other words that the injury would not have occurred without the defendant’s negligence” (para. 8 (emphasis deleted)).
Even if the point in Ediger has been slow to make it this far west, for whatever reason, there’s now Simmons v. Yeager.
[Link updated to CanLII link – 15 Dec 2014]
No remedy in medical negligence: fault without causation (1)
Briante v. Vancouver Island Health Authority, 2014 BCSC 1511, which I first discussed, here, a few days ago, is a stark reminder that, even in medical negligence, fault alone is not enough. The causation requirement, whatever it is held to mean, must still be satisfied. The action failed, ultimately, because, on the evidence, the fault of neither of the negligent nurse nor negligent physician, could validly be held to satisfy the balance of probability requirement that the negligence have been necessary for the occurrence of the injury. There was no doubt that there was a least a possibility of a connection, but that was not enough. Put another way, although the trial judge did not express the situation this way, the most the plaintiffs established was a less than 50% chance that, had the nurse or physician not been negligent, the injury would not have occurred. But that, as a matter of law, was not enough, if the governing test for causation was the but-for test (as it was).
Is it something in B.C. water? air?
The “151” in the top line of the graphic, below, is the number of cases in which Clements v Clements, 2012 SCC 32, [2012] 2 SCR 181 has been cited, in reasons on CANLII, in court or tribunal reasons since Clements was released in mid-2012. It’s 151 times in total, 136 by courts and 15 by tribunals. To be more accurate, it should be 150 since the 151 includes Clements itself at the SCC
The 2nd number in the top line -49 – is the total number of court reasons only since January 2014. It’s 54 if one includes tribunals. The court distribution is: BC 36, AB 3, ON 7, NS 3.
CanLII – Clements cites numbers Aug 2014
What if it had been the gander?
Van v. Howlett, 2014 BCSC 1404
[138] The defendants argue that taking a “robust and pragmatic approach” to causation (see Clements v Clements, 2012 SCC 32; [2012] 2 SCR 181), I should find that Ms. Van’s failure to wear a seatbelt did at least worsen her injuries. If I do not do so, submit the defendants, it effectively prevents the defendant from ever proving contributory negligence in cases of this nature. I do not agree. The expertise available to the defendants to assist in investigating causation was no different from that available to the plaintiff in this or any other case of a motor vehicle collision.
[139] The “robust and pragmatic approach” commended by the Supreme Court of Canada in Clements is not intended to facilitate an end run around the evidence. The Supreme Court made it clear in that case that the test for causation remains a “but for” test, and I am quite unable to find on the evidence before me that but for her failure to wear a seatbelt, Ms. Van would not have suffered to the same extent or at all the injuries for which she seeks compensation. On the contrary, I find that her head, facial and rib injuries, and all of their consequences that are relevant to this enquiry, would have occurred in any event due to the unusual mechanics of this accident. Like the situation considered by the Court of Appeal in Schenker v Scott, , 2014 BCCA 203, “[g]iven the mechanics of this accident and the nature of the injuries suffered, this is not a case where a seatbelt defence could be made out by relying on common sense inferences” (para 43).
[Emphasis added.]
The 4th Monkey Still in Abstenia 