Category: Evidence

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).

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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.

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