This comment was on CanLII Connects for a time. The CanLII PtB thought the tone wasn’t sufficiently respectful and wanted me to explain, in more detail, what I saw as the problems with the Sacks decision. I wasn’t prepared to change or add, so I removed the comment.
I have fixed some syntax issues and the English translation of the German quotation. Otherwise, it is the same. I haven’t added to or changed the meaning of what was in the CanLII Connects comment.
See https://davidcheifetz.ca/2017/10/23/the-canadian-law-pauli-awards/ for the version I wrote for here. There is some repetition.
(Revised & expanded Oct 19; addendum added Oct 21; punctuation and typos fixed Oct 23)
Wolfgang Pauli, the famous physicist, supposedly once said about the contents of a colleague’s paper: “Das ist nicht nur nicht richtig; es ist nicht einmal falsch!” (That is not only not right, it is not even wrong!.)
The ONCA earns a full Pauli for its frolic of law in Sacks v Ross, 2017 ONCA 773.
Not only did the panel:
1. misstate current Canadian law on proof of factual causation (in negligence), and
2. misunderstand the arguments of the treatise writers the panel cited; and
3. fail to refer to other treatises which contradict the panel, at least one of which is, in a very real sense, a treatise specifically about Ontario law dealing specifcally, in about 2 pages, with one of the mistaken arguments the panel made; and
4. misunderstand and mistate the law as set down by the Supreme Court in Clements and Ediger, even Athey; but
5. the panel somehow completely forgot to mention that, only about nine months earlier, another panel of the ONCA had specifically decided the issue the Sacks panel decided, AND that earlier panel came to the opposite conclusion. That is, that panel specifically approved the analysis of the law as set out by and applied by the trial judge in Sacks. That decision is Surujdeo v Melady, 2017 ONCA 41. The dicussion starts at . It isn’t obiter, either. And
6. even more remarkably, the Sacks panel specifcally quoted from Surujdeo, albeit on another issue. Add to this, the fact that,
7. ultimately, the Sacks panel found that the alleged errors made by the trial judge didn’t affect the correctness of the jury’s decision so that the appeal was dismissed.
I could, easily, extend this list to 11 but why bother. Then I’d have to start making Monty Python and Lewis Carroll jokes, too. However, the panel isn’t functus, yet, so maybe the panel will allow me to save the jokes for a better time. Instead, I will ask a number of rhetorical questions:
How does this happen?
Which research lawyer is to blame?
Why did the panel refer to Linden, Canadian Tort Law, but not Klar, Tort Law? The Linden text may not “use the word [necessary] in [its] specification of the [but-for] test.” The Klar text does. More than 20 times in chapter 11 (the causation chapter) of the 5th edition. I don’t have the 6th edition of Klar published a few months ago at my finger tips to do a similar count.
What about the other previous ONCA decisons, since Clements, accepting the Clements ratio that a but-for cause is a necessary cause?
What happens if the jury asks the judge if the negligence has to be necessary or sufficient?
Are counsel going to be told they can’t use the word “necessary” when making submissions to the jury about the conclusions to be drawn from the evidence? When asking questions of the witnesses?
Can a causative factor be a “real and substantial connection” without being necessary connection?
What does “purposive” mean other than the meaning the judge wants the word to have for the purpose the judge thinks is the purpose? (I’d normally cite H. Dumpty, J., here, but since I said I wasn’t going to make Lewis Carroll jokes, I won’t.)
What does “real” mean? Is that the opposite of “unreal”? Are we now in the realm of “abstract metaphysical theory” when discussing the meaning of “real and substantial”?
Where did “real and substantial” come from? (The panel didn’t cite antecedents, ancestry, anecdotes, sources, etc. I could guess, but rather than that, I suggest you look at my blog in any discussion of strange BC law. But, if that’s so, shouldn’t the panel have cited its sources?)
Is a minor necessary connection a “real and substantial connection.”?
A real and substantial connection would be something that “materially contributed”, right? It needn’t be anything more, right? But it is certainly is something that falls outside the de minimis range, right? Sound familiar; albeit something you’ve not heard as an acceptable explanation for factual causation, in Ontario, for quite some time?
Anybody smell the the odour of Athey material contribution to injury?
But Athey MCI is supposed to be defunct, right?
Ignatius of Loyala is reputed to have said: “Give me the child for the first seven years and I will give you the man.” All of the Sacks panel necessarily spent most of their careers as practitioners, far more than 7 years, while Athey MCI ruled Ontario: see Alderson v. Callaghan, 40 OR (3d) 136, 1998 CanLII 895 (ONCA) and Mizzi v. Hopkins, 64 OR (3d) 365, 2003 CanLII 52145 (ONCA) where the doctrine came to be called “contributory causation”. Loyola’s saying might be true for Jesuit training. It’s not supposed to be true for judicial training, alliteration notwithstanding.
Is the new requirement in Ontario now that the trier of fact must engage in a robust, pragmatic, application of ordinary common sense to find a real and substantial connection (between the negligence and the injury)? (I said I wouldn’t make Monty Python or Lewis Carroll jokes. I said nothing about John Lennon. If I can’t refer to lines in Jabberwocky, then I’ll mention “I Am The Walrus“. As in, with all due respect to the panel, that proposition makes as much sense as Lennon’s “goo goo g’joob.”)
But, now that I think of it, perhaps the search for the meaning of “real and substantial” in the phrase “real and substantial connection” could be combined with a search for the meaning of “gross” in the phrase “gross negligence”. Or, better, a search for the meaning of “common” in the phrase “common sense” (or the portmanteau ‘commonsense’ as it is often written elsewhere in the English-speaking world).
The President of the Surujdeo panel was Strathy CJO. You think he’ll be impressed at the impending need to empanel a 5 judge panel? If you’re an ambitious trial judge asked to chose between the decisions of the Sacks and Surujdeo panels, which do you chose?
As Jon Stewart used to say: ‘just sayin’.
I might, in due course, write something (with even more snark) about this case on my currently moribund blog: http://www.davidcheifetz.ca. However, it’s really “not my job” anymore – if that sounds like “he doesn’t care very much” you’re right – so that depends on whether I can convince somebody whose job it is to say what ought to be said. Those of you who don’t know why I am disinclined should look at the last few pages of my last article on this area of the law. It’s in (2013) 41 Advocates Quarterly. If you know enough to get here, you know enough to find that too.
As I mentioned, the panel didn’t cite any precedents, show any antecedents, etc., for the “real and substantial connection” claim [see . Those of you who have bothered to go to my blog will have seen the BCSC “substantial connection” mantra. Coincidentally, there’s yet another very recent BCSC decisoin from a trial judge who should know better. This one is: Zwinge v Neylan, 2017 BCSC 1861 (CanLII), <http://canlii.ca/t/h6prx>. See -, especially . If BC jurisprudence is the source of the “real and substantial connection” theory, shouldn’t the panel have mentioned that, too?
I now have now seen the relevant portion of the causation chapter – c. 11 – in Klar, Tort Law, published this summer. The explanation of the but-for test specifically uses “necessary”, as did the identical explanation in the 5th edition – should we say OOPS:
“In most negligence cases, the causal connection between the defendant’s negligent conduct and the plaintiff’s injury is established by the application of the so-called “but for” test. If it can be proved, on the balance of probabilities, that the plaintiff’s injury would not have occurred but for the defendant’s negligent conduct, the causal connection is established. Stated in other words, if the defendant’s conduct can be shown to have been a necessary cause of the plaintiff’s harm, conduct which made a difference to the plaintiff’s status quo ante, the “but for” test is satisfied.” (Klar, Tort Law, 6th, text associated with footnote 11; footnote omitted here).
Isn’t that paragraph at least one good reason why good scholarship required the Sacks panel to also refer at least to Klar? Or at least acknowledge the existence of other Canadian treatises on tort law which could be read to assert a contrary conclusion?
My recollection of what’s in Linden’s text is that there are other sections discussing the but-for test which make it clear enough that the meaning of but-for used in that test is “necessary”; and, that the same position is stated in Fridman et al, The Law of Torts in Canada and Osborne, The Law of Torts. I’ll check that over the next few days as is convenient for me. Now, of course, the mere fact that all of these eminent authors say “X” and the ONCA says “Y” doesn’t mean the Sacks panel is wrong – it also doesn’t mean the moon isn’t made out of green cheese – but it does make one wonder, doesn’t it? Especially since the panel saw fit not to mention any of these.
A panel of the ONCA deserves a PAULI Award for its frolic of law on proof of factual causation in Sacks v. Ross, 2017 ONCA 773 (CanLII), <http://canlii.ca/t/h6hsc>.
Why PAULI?: Because the famous physicist Wolgang Pauli once said about a theory in a physics paper: “”Das ist nicht nur nicht richtig; es ist nicht einmal falsch!” (That’s not just not right; it is not even wrong!) https://rationalwiki.org/wiki/Not_even_wrong
Why PAULI? It’s the closest analogy I could think of to the Darwin Awards: the idea being that the decision will not have descendants – i.e., will not be a precedent – so it has, in that sense, killed itself without progeny by eliminating itself from the legal equivalent of the gene pool.
The explanation for the award should tell you my view of the merits of the panel’s analysis of factual causation law principles.
Some readers will know that wrote a comment on that decision. It was available elsewhere on the web for a time. I have deleted it, for now. It will eventually reappear here, within a week or so, perhaps with some additions.
In the meantime, if you really really really need that commentary in the meantime, email me.
In the meantime, those of you who have to read and consider the merits of the Sacks assertions should keep in mind these three points:
1. In January 2017 the ONCA in Surujdeo v Melady, 2017 ONCA 41 clearly, expressly, specifically, etc., dealt with the issue the Sacks panel decided, AND that earlier panel came to the opposite conclusion. (Take a look at the name of the president of the Surujdeo panel.) The judges on that panel had before them, considered, and approved the analysis of the law as set out by and applied by the trial judge in Sacks. The discussion starts at . The discussion isn’t obiter. The issue of what and how to instruct the jury on factual causation in negligence, what the questions to the jury were to be, was the issue in Surujdeo. Surujdeo is a medical malpractice action with multiple defendants tried with a jury. (The plaintiffs succeeded at trial. The appeal was dismissed.) Nonetheless, it isn’t mentioned at all in Sacks even though Sacks cites Surujdeo as authority on a separate issue. This means we have the procedural issue of whether it was open to the panel to validly undertake the analysis in the manner that it did, regardless of what the proper decision was.
2. In Benhaim v. St‑Germain,  2 SCR 352, 2016 SCC 48, a decision which the Sacks doesn’t mention at all, McLachlin CJC, speaking for a unanimous court – there was dissent on a different issue – wrote
“ As I will now explain, Snell and St-Jean held that the ordinary rules of causation must be applied in medical malpractice cases. As prime examples of how the ordinary rules of causation operate in medical liability cases, these decisions are equally relevant in Quebec.”
That comment goes right to the issue of the merits of the panel’s analysis of the law governing proof of factual causation, including the questions and instructions to be given a jury.
3. The seeming claim by the Sacks panel that, essentially, medical malpractice claims with multiple wrongdoers are somehow different in principle, not just more factually complex, requiring not just a more careful analysis but somehow a different analysis in principle than other less complex cases, medical negligence and otherwise. That claim includes this assertion.
“ However, it is worth observing that the Supreme Court has never considered cases beyond the simple.”
I think there’s room to disagree on that claim but decide for yourself. Let’s start, and stop, here, with Benhaim v. St‑Germain and Ediger v. Johnston,  2 S.C.R. 98, 2013 SCC 18 on the medical malpractice side. For other types of case, let’s use Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd.,  3 SCR 1210, 1997 CanLII 307 (SCC).
When I last checked, Ontario, like Quebec and BC, was still part of Canada, both geographically and politically.
I realize I’ve yet to say what it is the panel asserted that is so wrong.
If you’re wondering what it is the Sacks panel actually said, and you need to know, it involves the meaning of the but-for test for factual causation in negligence, the proper form of the jury question(s) on factual causation, and what words to use to tell the jury about the meaning of but-for causation. The panel wrote in 
 There are three general issues:
1. Did the trial proceed on a correct understanding of causation in negligence cases?
2. Were the jury questions and the jury instructions on causation legally correct?
3. Did any legal error in the jury questions or the jury instructions deprive the appellants of a fair trial?
Beyond that? Read the decision. I’m trying to maintain some standards, here, for now.
I did write never say never.
I now return to my currently scheduled life.
For those who care:
You’ll find, at the link, the PDF version of the (revised version) of the PowerPoint slides I used, last month, as part of a lecture titled “A Plea For Coherence: Making Sense of Factual Cause” I gave in Vancouver on May 5, 2017 at UBC’s law school.
The subject shouldn’t surprise some of you: the incoherent state of proof of the jurisprudence on proof factual causation in negligence in Canada.
I have specifically not dealt with the issue of the use of statistical evidence. That is yet another area within the Canadian jurisprudence that needs a Stygian Stables level clean-up.
The “never say never” in the title of this posting refers to the likelihood that, unless there’s a radical change in my foreseeable future, this is last time I’ll write anything focused on the state of the Canadian jurisprudence on this subject.
I am not aware of any reason to expect – meaning any cases in respect of which leave has been granted where the issues ought to be considered – that the Supreme Court will do anything to clarify the various problems in the foreseeable future.
Perhaps this means that what is needed is for some inventive counsel to convince an appellate court to misuse an SCC decision, as plaintiff’s counsel did with Walker Estate in Resurfice; or, for a trial judge or appellate court to accept, as I point out in the paper, that the SCC jurisprudence requires the conclusion that, in Canadian negligence law, events may occur without having causes (and not just in Stoner, B.C.).
I began the published process of attempting to make sense of the Canadian jurisprudence in an article where the subtitle was “The Hunting of the Causative Snark”. Some of you will know that I completed the process about a decade later in an article which might as well have had the subtitle: “The Snark Is A Boojum”.
If you wish, imagine that my May 2017 piece has the subtitle: “Understanding Original Canadian Jabberwocky”.
I’d have used “Original Canadian Gibberish” but Mel Brooks is still alive to complain that “Blazing Saddles” is too good for that association. I’d have to agree. On the other hand, Lewis Carroll is not alive to complain although he’d be right, too, if he could and did.
One would hope that if a Canadian trial judge is going to quote or paraphrase any summary of Supreme Court of Canada law, the trial judge would use the Supreme Court’s own summary. This doesn’t require a Homer Simpson palm slap to the forehead for emphasis.
That didn’t happen, again, in a decision a judge of the British Columbia Supreme Court. Instead, the trial judge used something else from somewhere else that, by almost 4 years after the SCC decision that established the law, should be known to be wrong even in the remotest regions of British Columbia.