Category: Jurisprudence
Litigation: A Purifying Ordeal?
“Above all, he has to form his ideas without the aid of the purifying ordeal of skilled argument on the specific facts of a contested case.” [Citations below]
A problem with boilerplate
Those of you in British Columbia who (need or ought to) care about such things may have noticed an almost boilerplate quality in the paragraphs in recent British Columbia Supreme Court decisions setting out the principles of factual causation in negligence. This, on the whole, is a good thing and the judges should be commended.
On the other hand, what’s not good is that the boilerplate is literally wrong. (It’s still safe for me to say these things since I don’t have to appear in front of British Columbia judges.) So far, though, that hasn’t seemed to affect the validity of the judges’ decisions.
K-k-k-k-k-Katmandu
[Originally posted on Slaw.ca – Sept 15, 2012]
But for the moment we’ll stick to k-k-k-k-k-causation and contribution.
Does Clements-Resurfice material contribution apply between tortfeasors claiming contribution?
Is there any reason in principle not to allow contribution between tortfeasors where their liability to the plaintiff is based on material contribution?
I can’t see one.
(Other than that if we take Clements at face value its ratio deals only with causation injury in claims for damages in claims based on negligence.)
In principle, there is nothing about the material contribution doctrine to risk doctrine that necessarily limits it to being a basis for causation of plaintiff’s claims for damages.
Causation is causation is causation.
(You won’t find an answer in the contribution statutes. Trust me on that one.)
Pull up a chair, etc. This one is somewhat long.
Black Holes, Aether Excerpt 5 – Conclusion
This is an excerpt (with modifications) from the conclusion (Part 11) of “Black Holes, Aether“.
Whatever the Supreme Court might have intended by its restatement and explanation of the material contribution doctrine in Clements v. Clements, 2012 SCC 32, the Clements and Resurfice Corp v. Hanke 2007 SCC 7 reasons barely begin the process of clarifying the jurisprudence. If the Resurfice reasons moved the jurisprudence even one small step forward out of the shallower portions of the mire, they concurrently pushed it at least two larger strides back into deeper quagmire. The Clements reasons, because of what the Court said about both the but-for test and the material contribution doctrine, are, at best, one small step back towards the shore. Part of my conclusion in Cheifetz, “Snell Inference” [“The Snell Inference And Material Contribution: Defining The Indefinable And Hunting The Causative Snark – A Not Excessively Subtle and Theoretical Examination of Proof of Factual Causation in Canadian Tort Law” (2005) 30 Adv. Q. 1] about the state of Canadian jurisprudence on the meaning of factual causation in tort, then, was that “clarity, predictability and ease of use are not defining characteristics”. One can now predict that the but-for test will be used in most actions in tort based on negligence; otherwise, the conclusion remains correct. Resort to the smokescreen of common sense will not increase clarity or predictability.
…
Black Holes, Aether – Excerpt 4 But-for, common sense, reality
This is an excerpt, with modifications, from Part 9 (“Some But-for Issues”) of “Black Holes, Aether“. Part 9 examines some of the problems in what Clements says about the but-for test and how that test is to be applied.
The only test the Clements acknowledges for proof of factual causation on the balance of probability is the but-for test.
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 fail.[1]
The text of Clements suggests that the Supreme Court currently does not recognize any test for proof of factual causation on the balance of probability other than the but-for test.[2] There is nothing in Clements that provides any basis for concluding that the Supreme Court would recognize any other test for proof of factual causation on the balance of probability.
The 4th Monkey Still in Abstenia 