Category: Jurisprudence
A Third Telling
Is the common law meaning of causation under the but-for test now the same in British Columbia as it is in Ontario, or Newfoundland? Or the rest of the common law provinces and territories?
Will the “meaning” of Clements v. Clements, 2012 SCCC 32, adopted in each of the Canadian common law jurisdictions be the same meaning is an “interesting” question. Well, it is interesting for some people. It will be interesting for plaintiff-litigants who have a choice of proper jurisdictions within which to sue. It will also be interesting for defendant-litigants who are considering a motion to have an action stayed or dismissed in one Canadian jurisdiction on the basis that another Canadian jurisdiction the proper, or the better, forum. It might also be interesting for judges deciding the certification question in a “mass tort” class action where the plaintiffs come from more than one province or territory.
It might not be the same meaning initially.
It might even take another visit to the Supreme Court of Canada to answer that question. Remember that, in the 5-year interregnum between Resurfice Corp v. Hanke, 2007 1 SCR 333, 2007 SCC 7, the Courts of Appeal of British Columbia (and seemingly Alberta) on one side, and Ontario on the other, did not agree on the meaning of the Resurfice material contribution declarations. In addition, none of these courts ever acknowledged the existence of the other opinions.
Clements now establishes what Resurfice must be understood to mean so the old dispute about the meaning of Resurfice does not matter.
The other question, then, is whether we will soon have a new dispute extending to the meanings of both but-for doctrine test and material contribution doctrine.
As ever, it wouldn’t hurt to have a glass or cup of your favourite tipple nearby.
The Weight of Nothing
According to the most recent reminder from the Supreme Court of Canada, the application of common sense in a robust, pragmatic, manner, will provide the answer to the factual causation question – is the defendant’s negligence more likely than not a necessary cause of the injury – in most cases where a plaintiff alleges that the plaintiff’s injury was caused by negligence for which the defendant is responsible. See Clements v. Clements 2012 SCC 32 at paras. 9, 10, 23, 38, 46(1).
On the other hand, we must not forget that it was once “Western” common sense that witches existed; the Earth was flat, the centre of the universe, and the Sun rotated around the Earth; Heaven and Hell were physical places; diseases were caused by an imbalance of humours; if one could travel fast enough, one could catch light; women were the property of men; Homo Sapiens did not evolve from earlier forms of hominid but has always had its current form; and creation occurred on the night preceding Sunday, 23 October 4004 BCE (by the Julian calendar).
Really.
A good friend reminded me, recently, that there are parts of Canada where some the items in that list are taken as gospel. (He wasn’t referring to Ottawa.)
Spilling Ink
As some readers know, the Supreme Court of Canada (the “SCC”) wrote in 2007: “Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful to catalogue the various debates.” (Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 SCR 333 at para. 20)
About 5 years later, the Supreme Court found it necessary to spill some more ink on the subject because, in its own words, its discussion in Resurfice of at least one very important aspect of the subject was “incomplete”: Clements v. Clements, 2012 SCC 32 at para. 34.
I plan to spill some more of the electronic equivalent, pixels, to show why it was and still is both necessary and helpful to catalogue (maybe even refer to) at least some of the various debates, and why it would have been helpful if the Supreme Court had been just a bit less dismissive, and more careful, in both Resurfice and Clements.
Pull up a chair and a glass (or more) of your favourite tipple. As ever, these posts assume that the reader has a basic level of familiarity with the subject matter.
Don’t Forget The Audience
because, in the words of Chilliwack, “if there’s no audience there just ain’t no show”.
Who is the audience that has been forgotten? The Canadian public.
Who is it that is too often forgetting? Judges.
Given the state of current law on proof of causation in negligence , it is too often the case the only honest, sure, advice we practitioners can give our clients on causation issues, in any case but the most obvious, is: “you pay your money (to us), you take your chances”.
This is a good thing (for practitioners who get paid), no? And for commentators who wish to spill ink. It is clearly not for the Canadian public.
Lawyers, judges, and litigants know the consequences of a finding of causation assuming all of the other requirements of the cause of action are satisfied. The defendant will be held liable to pay some amount of money to the plaintiff. See Snell v. Farrell, [1990] 2 S.C.R. 311 at 326.
Causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former.
Causation isn’t an academic exercise when the issue is raised in court. If the judge or jury cannot find causation, the action is supposed to be dismissed. The plaintiff, even if injured, gets nothing.
A failure to to deal with the causation issue in an adequate manner – whatever adequate means (which is whatever the legal system says it means, nothing more, nothing less)) – has real consequences to the parties to the litigation.
The 4th Monkey Still in Abstenia 