When the Supreme Court of Canada says “X” in 2007, and repeats “X” in 2011 adding explicitly that “X does not mean Y but means Z”, it is reasonable to assume (is it not?) that, once word of what was said in 2007 and repeated in 2011 spreads through the “jurisprudential aether”, however long that takes, the judges of the lower courts in Canada will pay attention.
It’s always worth quoting this reminder about pecking orders in the Canadian judicial universe:
 Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder.
 I am bound by decisions of Queen’s Bench judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada. Very simply, Masters in Chambers of a superior trial court occupy the bottom rung of the superior courts judicial ladder.
 I do not overrule decisions of a judge of this court. The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.
See South Side Woodwork v. R.C. Contracting, 95 AR 161, 1989 CanLII 3384 (AB QB)
Given the above, the concept of common sense, meaning whatever it is that common law judges advert to when they call on that concept to provide an explanation for a conclusion, requires us (does it not?) to conclude:
(1) the Court of Appeal of Newfoundland and Labrador would be aware, by now, of what the Supreme Court of Canada declared an aspect of Canadian law to be, in common law Canada,
almost 6 about 8 years ago, or at least about 4 years ago, because about 4 years and certainly about 6 8 years is more than enough time for some medium to transport the information contained in the SCC’s statements from Ottawa to St. John’s;
(2) the same proposition applies to the state of knowledge of lawyers in St. John’s who practice in the relevant area of law; certainly, at least, those professing expertise in the area.
If you accept (1) and (2) what could be the explanation for what happened in the case I’ll quote from immediately after the break?
No, it’s not a case from the province on Canada’s Western coast. Or any of the territories on Canada’s northern coast. Not even a Prairies, Central Canada, mainland Atlantic Canada, or Canada’s smallest province, case.
The truth about factual causation issues in most personal injury actions is that, where there’s any issue at all, it’s not one that involves difficult questions of law or any need to venture into realms of philosophy or metaphysics, abstract, concrete or something else. Instead, the issue is whether the evidence is enough to establish that the alleged negligence was a sufficient legal cause of the injury. The evidence may be complicated. The decision may require the trier-of-fact, judge or jury, to make difficult choices, such as who to believe or what conflicting evidence to accept or reject. In the not-trite aphorism that lawyers involved in the dispute resolution portion of the legal system soon learn, the law in a particular case is clear. What isn’t clear is how to apply the law to the facts.
I’m going to mention a 4 articles published in the last 3 years which should interest members of the legal profession, and others, who, for whatever reason, are interested the subject of causation in negligence. These articles may help to clarify, for some readers, some of the murkiness in the current state of Canadian common law case-law governing proof of factual causation in negligence actions.
Don’t worry, I’m not the author of any of them. That means the articles are short enough for convenient reading. Three of the articles are by leading academic lawyers. The fourth is by a lawyer with experience in the Canadian civil litigation, medical malpractice, trenches.
The articles are:
Jane Stapleton, “Unnecessary Causes” (2013) 129 LQR 39.
René Brewer, “The End of Material Contribution to Injury (2013) 42 Adv Q 217.
Jane Stapleton, “An ‘Extended But-For’ Test for the Causal Relation in the Law of Obligations” (2015) Oxford Journal of Legal Studies.
Oxford J Legal Studies (2015)
First published online: March 7, 2015
Ernest Weinrib “Causal Uncertainty” (2015) Oxford Journal of Legal Studies.
Oxford J Legal Studies (2015)
First published online: July 2, 2015
Unless you know somebody, the last 2 are currently available online, only.
I discuss these articles, and their significance to Canadian jurisprudence, after the break. Most of the discussion deals with Professor Weinrib’s article.
Warning: the entire post is about 6,400 words according to Word, but the wording counting tool in the version of Word I’m using counts parts of citations as words, so there’s a bit less than that.
Some of you may consider what follows excessive pedantry because you’ve already realized where I’m going and are horse-fanciers and members of an SPCA-type organization whose purview extends to dead animals (or zombies).
In Clements v. Clements,  2 SCR 181, 2012 SCC 32, the Supreme Court set out the requirements of the but-for test for proof of factual causation in negligence. The Court made it explicitly clear that the test turns on the requirement of “necessity”. The defendant’s negligence must have been necessary for the occurrence of the accident, and ultimately the plaintiff’s injury. Any causal relationship less than necessity will not satisfy 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 fails.”
(Emphasis in original.)
Everything in Clements after paragraph 8, dealing with the but-for test, explains how the test is to be applied; what the judge or jury is to do in order to decide if the evidence permits the valid conclusion that, on the balance of probability, the negligence was “necessary” . The discussion does not lessen, reduce – choose any synonym you want – the “necessity” requirement.
This isn’t just me on a soapbox.
In Ediger v. Johnston,  2 SCR 98, 2013 SCC 18, the Court summarized the Clements message.
 This Court recently summarized the legal test for causation in Clements v. Clements, 2012 SCC 32 (CanLII),  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 (CanLII),  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)).
After the break, I discuss I recent case in which I think the trial judge, and the plaintiff’s expert, probably meant there was a necessary relationship between the negligence and the accident, but the trial judge did not explicitly quote or paraphrase paragraph 8 of Clements. The expert’s testimony, as set out in the reasons, also does not necessarily contain any of the magic words or an explicit synonym (word or phrase).
The trial judge’s summary of his conclusion on causation was: “I am satisfied that the defendant’s negligence was a contributing cause of the accident.” (para. 33)
Did the trial judge mean: I am satisfied that the defendant’s negligence was necessary for the occurrence of the accident in the sense that, but-for the negligence of the defendant, the accident would not have occurred.
Liability insurers, underwriters, and Canadian lawyers representing insurers should take note of the just released United Kingdom Supreme Court judgment in Zurich Ins v IEG at https://www.supremecourt.uk/cases/docs/uksc-2013-0057-judgment.pdf.
Zurich contains the UKSC’s most recent explanation and summary of the interplay of liability coverage and (common law) liability on the basis of material contribution to risk. The various reasons, which review existing UK case law, should be very relevant in future Canadian cases. The latter are sure to spawn related insurance coverage disputes between insurers and their insureds and between insurers. I’ll leave it at that.