I’m not in Kansas any more. I don’t have to pull my punches.
1. An existing WTF
Hinder v. Yellow Cab Company Ltd., 2015 BCSC 2069 is an for damages arising out of injury the plaintiff alleged she sustained in a motor vehicle accident on 16 December, 2010, in Vancouver BC. The action was tried in Vancouver in March 2015. Judgment was rendered in Vancouver on November 2015. The plaintiff succeeded.
If you’re not interested in reading yet another complaint about a trial judge setting out the governing law in a manner that, on its face, is not correct including not referring to the explanation of that law as set out in the recent, governing, SCC decisions, then stop reading now.
Over on Slaw, I’ve written a rant, and posted it, too, about yet another judge’s problematic use of “substantial connection” when seemingly discussing the meaning of factual causation in the Canadian law of negligence.
This one isn’t about a B.C. decision. The context is a motion by a defendant, in an Ontario action, to dismiss the action. The motion – an application for B.C. types – failed. I think it’s a safe assumption that the motion judge isn’t a regular reader of this blog, let alone a follower. Besides, the Rockies are in the way.
(Image from taken from a public domain version of the text of Lewis Carroll’s “Through The Looking Glass”. You’ll find it in c. 6.)
I have discussed the case here and here. The SCC did not, as is its current practice, provide reasons for granting leave. However, we can glean what the parties think the issues are, or are not, from these excerpts from the Applicants’ and Respondents’ factums.
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.