Category: Tort
Spot the non-sequiturs and two almost rights don’t make a right
[289] A finding that a defendant’s conduct has fallen below the requisite standard of care does not necessarily make that defendant liable for the plaintiff’s injury. The plaintiff must also prove that the defendant’s substandard conduct caused the injury in respect of which the plaintiff is seeking damages.
[290] The primary test used in determining causation in negligence is the “but for” test. The plaintiff bears the onus of proving, on a balance of probabilities, that “but for” the defendant’s negligent act or omission, the injury would not have occurred: Athey v. Leonati, [1996] 3 S.C.R.; 458 [Athey]; Blackwater v. Plint, 2005 SCC 58 (CanLII), 2005 SCC 58; Clements v. Clements, 2012 SCC 32 [Clements]; Ediger (Guardian ad litem of) v. Johnston, 2013 SCC 18 (CanLII), 2013 SCC 18 [Ediger]. Inherent in the test is the requirement that the injury would not have happened without the defendant’s negligence: Clements at para. 8; Ediger at para. 28.
[291] The plaintiff need not establish that a defendant’s wrongful conduct is the sole cause of his injury. So long as a substantial connection between the harm and the defendant’s negligence beyond the “de minimus” range is established, the defendant will be fully liable for the harm suffered by a plaintiff, even if other causal factors, which the defendants are not responsible for, were at play in producing that harm: Farrant v. Laktin, 2011 BCCA 336; Athey; Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), 2007 SCC 7 [Resurfice].
Chen v. Ross, 2014 BCSC 374
The answers are on the next screen. Don’t peek.
Analogies, Philosophers’ Stones, and Finding the Causative Snark
“Analogy” as defined at www.oxforddictionaries.com:
1. a comparison between one thing and another, typically for the purpose of explanation or clarification: ..
…
1.3 … Logic a process of arguing from similarity in known respects to similarity in other respects: …
So, tell me again, please: Why is a raven like a writing desk?
Factual causation in tort: Necessary reading for Canadian lawyers and jurists
Just published in the 2014 Supreme Court Law Review: Russell Brown, “Cause-in-Fact at the Supreme Court of Canada: Developments in Tort Law in 2012–2013” (2014) 63 SCLR (2d) 327.
Added June 13, 2014: For those who don’t know, Russell Brown is now Mr. Justice Brown of the Alberta Court of Appeal.
Added Feb 11/14 June 13, 2014: I’m going to discuss the article in some detail over the next month or two eventually.
I quote portions of the introduction and the conclusion in the next screen.
When I Use A Word …
At some point this year, I might have the fortune to attempt, again, to explain the current state of Canadian tort causation law to a class of law students.
I’ll point out, again, that if one attempts to parse the statements of principle in the cases, they too often not don’t make sense. Or they’re not consistent with statements in other recent cases at co-ordinate levels. Or they’re not consistent with supposedly binding decisions of a superior court.
I’ll emphasize, again, that somehow trial and appellate judges (and juries), more often than not, make a decision that’s defensible on the evidence.
Tort, Negligence, Causation, Common Sense: What might happen in 2014
An application for leave to appeal to the SCC is awaiting decision in Hansen v Sulyma, SCC #35556; 2013 BCCA 349. The panel is Justices Abella, Rothstein and Moldaver.
If leave is granted, the Court might clarify the meaning of the Snell proposition that factual causation is a matter of common sense.
Addendum Feb 1, 2014: Leave to appeal was denied on Jan 30, 2014.
The 4th Monkey Still in Abstenia 