Category: Negligence

Factual Causation: Never say never, but …

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.

Cheifetz-Factual-Cause-May 2017 revised June 2017- reduced size

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.


Legal Cause Matters: Sense and Sensibility in British Columbia

Amended 14 Feb 2017

The Owners, Strata Plan LMS 3851 v. Homer Street Development Limited Partnership,  2016 BCCA 371 (CanLII) deals with a number of issues including the nature of the causation requirement, if any, for recovery of damages under the Real Estate Act, R.S.B.C. 1979, c. 356 (subsequently R.S.B.C. 1996 c. 397).

The facts, conclusion, and reason for the conclusion as summarised by the court:

This appeal arises out of the sale of strata units in the Westin Grand Hotel in downtown Vancouver. The Investors purchased their units in November 1996 after receiving a disclosure statement issued under the Real Estate Act. The sales closed in April 1999. At the liability trial, the judge found that the disclosure statement contained a material misrepresentation concerning a projection of anticipated occupancy rates. His conclusion was upheld on appeal. After a 26-day quantum trial, the judge assessed damages at $8,000,000, which represented the fall in the value of the units as of the date of closing. The Developers appeal, raising two grounds: first, that the judge erred in excluding evidence on the issue of reliance on the part of the Investors; and second, that the judge erred in his determination of compensation by choosing the incorrect date to assess the Investors’ losses and by not limiting them to those caused by the misrepresentation.

Held: appeal allowed. With respect to the issue of reliance, the judge did not err in concluding that deemed reliance under the Real Estate Act can only be rebutted when the investor had knowledge of the misrepresented or omitted facts at the time of the investment. Thus, the evidence the Developers sought to lead was not relevant to any available defence. As for the assessment of damages, the judge erred in finding that the Investors were entitled to recover all damages sustained as a result of entering the sales agreements. Section 75(2) of the Real Estate Act, properly interpreted, does not require the Developers to compensate the Investors for losses suffered solely as a result of an external cause, here a change in market conditions, which did not result from the inaccuracy of the representation.

(My emphasis)

The related paragraphs in the reasons:

[102]     The purpose of the Real Estate Act is to protect the investing public. However, the legislation also balances the needs of the investor community against the burden imposed on issuers: Sharbern SCC at paras. 118–119. Section 75 promotes this purpose by protecting investors from material false representations.  It provides the statutory mechanism pursuant to which an investor can hold a developer liable with respect to the representations found in a disclosure statement. Through its deeming provisions it relieves the investor from the sometimes onerous task of proving reliance.

[103]     I see no special reason why the liability of developers to pay compensation under s. 75(2)(b) of the Real Estate Act for a material misrepresentation should extend to losses arising, not from the inaccuracy of the representation, but from market forces. First, a deceit measure of damages is not appropriate as the statute imposes liability in situations far removed from where a developer engaged in fraudulent conduct. Imposing such an obligation would place developers in the role of insurers to investors for losses arising from market forces. This is not the function of the disclosure obligations of developers under the statute, nor is such a result required to serve the statutory purposes underlying disclosure obligations: Sharbern SCC at para. 118.

[104]     Second, in my view, a developer’s requirement to pay compensation for a material misrepresentation under s. 75(2)(b) must be interpreted in light of the nature of its statutory disclosure obligations.  The principal statutory obligation placed on developers under Part 2 of the Real Estate Act is to provide full and accurate information in the disclosure statement. A developer is not required to advise potential investors generally.

[105]      I would adopt the course charted by Slatter J.A. in Hogarth. To succeed in an action for compensation under s. 75 of the Real Estate Act, an investor must prove both the material misrepresentation and that a loss would not have resulted if the representation had been true. A developer is not liable to compensate an investor for losses suffered as a result of external causes, such as changes in the market, which do not result from the inaccuracy of the representation.

[106]     In this case, no loss or damage resulted from the inaccuracy of the misrepresentation. Instead, the losses arose from external causes.  Thus, the Investors would have suffered a loss even if the representation was true. The loss arose because of a change in market conditions, a risk that was clearly identified in the Disclosure Statement. As the loss arose solely for reasons unrelated to the representation, it is not recoverable against the Developers.

[107]     In the result I find that the Investors have not proven any damages arising from the material misrepresentation. I would allow the appeal and dismiss the action.

[All emphasis added.]

The BCCA’s rationale for this conclusion is that the but-for test governs the causation requirement for claims based on the statute.

[88]        In Hogarth, the Alberta Court of Appeal considered the elements at common law for damages from a negligent misrepresentation. Slatter J.A. noted, at para. 34, that the general test for causation in tort is that a plaintiff must generally establish on a balance of probabilities that the injury would not have occurred but for “the negligence of the defendant”: Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5 (CanLII) at para. 93; Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII) at paras. 21–22; Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458 at para. 14; and Clements v. Clements, 2012 SCC 32 (CanLII) at paras. 6–8.

[89]         Based on that foundation, Slatter J.A. concluded that in regards to the tort of negligent misrepresentation, a two-part test for causation arose. He found:

[36]      An application of the law set out in these binding authorities to the tort of negligent representation leads to a two part test for causation in negligent misrepresentation. The plaintiff must demonstrate that “but for” the representation, the damage would not have been suffered. This requires proof that but for the representations, the plaintiffs “would not have invested the monies they did”, and that the damage would not have resulted if the representations had been true. If either of these two tests is not met, then the “but for” test is not satisfied. If the plaintiffs would have lost their investment even if the representation was true, then their losses did not occur “but for” the tort. In the words of Clements, there is no correlative relationship of doer and sufferer of the same harm.

[37]      It is true that “but for” making the investment, the respondents would not have suffered any damage. In a factual sense, entering into the investment contracts was one necessary cause of the losses. But the law is not concerned only with causation in fact. “Causation” is a legal concept about the relationship between the tort and the injury that is needed to claim damages: Snell v Farrell, 1990 CanLII 70 (SCC), [1990] 2 SCR 311 at p. 326. In order to tie the damage to the misrepresentations, there were two necessary preconditions: entry into the contract, and the inaccuracy of the representations. Where the investor plaintiff suffers other losses that are unrelated to the misrepresentation, the defendant representor is not responsible:

Separation of distinct and divisible injuries is not truly apportionment; it is simply making each defendant liable only for the injury he or she has caused, according to the usual rule. The respondents are correct that separation is also permitted where some of the injuries have tortious causes and some of the injuries have non‑tortious causes: Fleming, supra, at p. 202. Again, such cases merely recognize that the defendant is not liable for injuries which were not caused by his or her negligence. (Athey at para. 24)

The losses suffered by the respondents as a result of the inaccuracy of the representations are distinct and divisible from the losses they suffered as a result of external causes. Under the general rules of causation, the latter are not recoverable.

[Emphasis in original.]

[90]        Slatter J.A. then held that his conclusion was similar to the result in SAAMCO. He indicated that the same approach had also been followed in Australia (Kenny & Good v. MGICA, [1999] HCA 25 at paras. 26, 29, 48, 54–6, 80) and New Zealand (Bank of New Zealand v. Zealand Guardian Trust Co. Ltd., [1999] 1 N.Z.L.R. 664 at 682–683 (C.A.); and Sherwin Chan & Walshe Ltd. (in Liq) v. Jones, [2012] NZCA 474 at paras. 36–41).

[Ehmphasis in para. 37 in original.]

The result is correct. The analysis is broadly correct. However, the analysis is capable of misleading the unwary and the less than expert because of its succinctness and the manner of its presentation. At a glance, the the casual reader might take the conclusion to be that the BCCA found no more than that the plaintiffs had failed to establish, on a but-for meaning necessary basis, that loss was caused by defendants who made the misrepresentation. However, that is not what the BCCA held. The court held merely that the loss was not by  the wrongful act of the defendants; that is, the misrepresentation. The court wrote at para. 100: “In the normal course the law limits liability to those consequences which are attributable to that which made the act wrongful.” 

In this respect, it is important to note what the panel wrote in para. 82, referring to Rainbow Industrial Caterers Ltd. v. Canadian National Railway Co., [1991] 3 SCR 3, 1991 CanLII 27.

[82]        McLachlin J., as she then was, dissented. In her view, the question was not what the total loss on the contract was but what loss was shown to have been caused by the negligent misrepresentation. She held that if the defendant could show the loss was caused by factors other than the misrepresentation, then the chain of causation was broken. She reasoned at 19:

Tort liability is based on fault, and losses not caused by the defendant’s fault cannot be charged to it.

[Emphasis added.] For what its now worth, the point made by (now) McLachlin C.J., which has always been the correct law, even in British Columbia, is also the point appellants’ counsel made in Hansen v. Sulyma, 2013 BCCA 349 (CanLII). However, the panel either misunderstood or, I suppose we have to assume, felt that on the evidence the loss had to treated as also having been caused by the portion of the defendant’s conduct which was the wrongful conduct because the nature of the loss made it indivisible.

I’d not rely on the BCCA’s understanding of U.K. cases such as SAAMCO because it is ambiguous. There is no problem with that understanding if it is captured by the sentence quoted above form para. 100. However, the first sentence para. 100 is a problem. The full text of paras. 100-101 of Strata is

[100]       As noted in SAAMCO, rules which make the wrongdoer liable for all the consequences of his wrongful conduct are the exception and need to be justified by some special policy.In the normal course the law limits liability to those consequences which are attributable to that which made the act wrongful.

[101]     Southin J.A. highlighted a similar point in Webster v. Ernst & Young, 2003 BCCA 95 (CanLII). After referring to SAAMCO, she observed that there is no “moral foundation” for equating damages from a negligent breach of a duty with damages for fraudulent conduct:

[87]      In that judgment, I take the House of Lords to be saying that one must not carry the “but for” principle too far.

[88]      A reason for not carrying the “but for” proposition too far is that it will lead the law into equating, for the purpose of assessing damages, negligent breach of the duty of care and skill in the management of another’s business with fraud. In my opinion, there is no moral foundation for such an outcome.

However, paras. 100-101 are incorrect if their purpose was to assert that SAAMCO stands for the proposition that there can be liability for negligence at common law without factual causation. I suspect that the BCCA did not quite intend the paragraphs to mean what the paragraphs assert, not the least because what the BCCA said about SAAMCO elsewhere in the reasons, and ; however, this is moot because that conclusion regarding SAAMCO is irrelevant to the end result given that the BCCA found no liability. Southin JA’s  point in Webster is not the point in issue here although it highlights the need to not use the but-for test literally.  

The Respondents, having succeeded at trial and having lost on appeal, seem to have been rather vexed. They applied to the BCCA seeking to reopen the appeal so that they could obtain an order referring the  back to the trial judge for another assessment of damages, rather than dismissing the action. The grounds the Respondents hoped to rely on at the new assessment were new: grounds not argued at trial or on appeal. Unsurprisingly, the BCCA wasn’t impressed. The answer was no: The Owners, Strata Plan LMS 3851 v. Homer Street Development Limited Partnership, 2016 BCCA 491 (CanLII), <>

The respondents apply to re-open the appeal. They submit that their claim should not be dismissed but rather referred back to the trial judge to make damage findings in light of this Court’s reasons. Held: application dismissed. The respondents now seek to raise a point not raised or argued in the original appeal and contrary to the admission made at the case management conference. Having chosen their field of battle and having lost, the respondents are not entitled to a second chance to establish damages.

[11]        With respect, the circumstances here are not exceptional. We are not persuaded that the Court overlooked or misapprehended the evidence in any material respect. The respondents now seek to raise a point not raised or argued in the original appeal and contrary to the admission made at the case management conference.

[12]        The respondents had the onus of proving their damages. They sought to do so by proving the loss of capital value being the difference between what the respondents paid for the units and the units’ value in April 1999. This Court has decided that the loss which the respondents sought to establish did not represent the proper measure of damages for a claim arising under the Real Estate Act.

[13]        The respondents, by way of this application, are seeking a do-over. Having persuaded the trial judge to adopt what that this Court has concluded was an erroneous view, they now want to re-argue damages on an entirely different basis.

[14]        In this case, the respondents, both at trial and on the appeal, chose the field upon which they wish to fight the damages battle. Having now lost that battle, they wish to re-group and fight again. Litigants do not get multiple opportunities to present their case. Having chosen their field of battle and having lost, the respondents are not entitled to a second chance to establish damages.

[15]        We would dismiss the application for reconsideration.

Given the amounts involved, the over / under on leave to appeal being sought from the SCC is zero.

Consider the implications of this statement. Counsel for the Respondents (plaintiffs) would not have filed for reconsideration if counsel thought there was no merit to the new grounds that the plaintiffs planned to argue if the case had been remitted. You should be able to do the math yourself.

More adventuring with scholars, philosophers, and me

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)
doi: 10.1093/ojls/gqv005
First published online: March 7, 2015

Ernest Weinrib “Causal Uncertainty” (2015) Oxford Journal of Legal Studies.

Oxford J Legal Studies (2015)
doi: 10.1093/ojls/gqv020
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.

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The judgment is probably correct in result, but …

Regular enough readers of this blog know that I tend to harp on the judicial obligation to set out the applicable law correctly.

Some readers of this blog who still remember their university days may remember finding out that it wasn’t enough to get to the seemingly correct answer.  You had to explain, correctly, how you got that answer. You might, depending on what the mistake was, still get a passing grade on the question; however, you might not.

However, lawyers who are in practice soon learn, if they didn’t at law school, the ultimate rule: appeals are from the result – the judgment – not the reasons for judgment. There is no miscarriage of justice if it is sufficiently clear (whatever sufficiently means in the particular case) that the error in issue did not make a difference; that the result is the result required on the facts. The Supreme Court of Canada wrote in R. v. Sheppard, [2002] 1 SCR 869, 2002 SCC 26:

[4]       The appellant Crown contends that “[i]t has been a settled principle of Canadian law that a trial judge does not have to give reasons” (factum, at para. 13 (emphasis in original)).  This proposition is so excessively broad as to be erroneous.  It is true that there is no general duty, viewed in the abstract and divorced from the circumstances of the particular case, to provide reasons “when the finding is otherwise supportable on the evidence or where the basis of the finding is apparent from the circumstances” (R. v. Barrett,  [1995] 1 S.C.R. 752, at p. 753).  An appeal lies from the judgment, not the reasons for judgmentNevertheless, reasons fulfill an important function in the trial process and, as will be seen, where that function goes unperformed, the judgment itself may be vulnerable to be reversed on appeal.

[5]        At the broadest level of accountability, the giving of reasoned judgments is central to the legitimacy of judicial institutions in the eyes of the public.  Decisions on individual cases are neither submitted to nor blessed at the ballot box.  The courts attract public support or criticism at least in part by the quality of their reasons.  If unexpressed, the judged are prevented from judging the judges.  The question before us is how this broad principle of governance translates into specific rules of appellate review.

[33]  The appellant relies on this statement as establishing a simple rule that trial judges are under no duty to give reasons, but it seems to me, on the contrary, that this Court did expect trial judges to state more than the result.  McLachlin J. anticipated at least “their conclusions” on the main issues (though perhaps not “collateral” issues) at least “in brief compass”.  Further, as pointed out by O’Neill J.A. in the court below, the observations in Burnswere substantially qualified by the use of the words “all”, “general”, “merely”, “all aspects”, “in itself”, “every aspect”, “in brief compass”, and “collateral aspects”.  What was said in Burns, it seems to me, was that the effort to establish the absence or inadequacy of reasons as a freestanding ground of appeal should be rejected.  A more contextual approach is required.  The appellant must show not only that there is a deficiency in the reasons, but that this deficiency has occasioned prejudice to the exercise of his or her legal right to an appeal in a criminal case.

[Emphasis added in para 4; underlining emphasis added in para. 33; other emphasis in original in para. 33.]

R. v. Sheppard applies in at least some areas of private law, includes claims for damages in tort and contract: see Cojocaru v. British Columbia Women’s Hospital and Health Centre, [2013] 2 SCR 357, 2013 SCC 30Hill v. Hamilton-Wentworth Regional Police Services Board, [2007] 3 SCR 129, 2007 SCC 41 at paras. 100-101; and, at the provincial appellate level, including: Bunan v. Toronto-Dominion Bank, 2015 ONCA 226 at para. 20 (” … the test on appeal is whether any deficiency in the reasons has occasioned prejudice to the exercise of [the appellant’s] legal right to an appeal” [internal quotations marks omitted]); Maple Ridge Community Management Ltd. v. Peel Condominium Corporation No. 231, 2015 ONCA 520

[30]      Having concluded that the reasons of the Small Claims Court were facially incapable of appellate review, the Divisional Court was obliged to consider the record before the trial judge to determine if the reasons were more comprehensible when read in the context of this record.

[31]      The level of requisite detail in reasons will be lessened “[w]here the record discloses all that is required to be known to permit appellate review”: Hill v. Hamilton-Wentworth Police Services Board, 2007 SCC 41 (CanLII), [2007] 3 S.C.R. 129, at para. 101. If a detailed record is available, the appellate court should not intervene “simply because it thinks the trial court did a poor job expressing itself”: R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869, at para. 26.

See also Paragon Capital Corporation Ltd. v Morgan, 2014 ABCA 363 at paras. 47-49; Wadden v. BMO Nesbitt Burns, 2015 NSCA 48 at para. 63. This link will take you to a CanLII search result for appellate decisions across Canada over the past year (Sept. 2014 – Sept. 2015). Change the date filter to increase the range.)

Is there at least some inconsistency between the statements in the second and third paragraphs I wrote above? Yes. Welcome to the legal system. It’s called circular breathing: the ability to suck and blow at the same time.

More after the break.

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Did the trial judge mean “necessary”? Probably, but …

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, [2012] 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.

[8]   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[2013] 2 SCR 98, 2013 SCC 18, the Court summarized the Clements message.

[28]     This Court recently summarized the legal test for causation in Clements v. Clements, 2012 SCC 32 (CanLII), [2012] 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), [2007] 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.

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