Substantial necessity?
On the other hand, stringing together statements from cases isn’t good form, either, if one statement contradicts another, or make no sense in any event in the context to which the statements are purportedly applied.
Some useful cases on the but-for test
The counterfactual analysis aspect
A case worth reading, because it accurately explains how the but-for counterfactual hypothetical (i.e., possible, what-if, etc., world) analysis is to be done. (For those who have been paying attention, that’s the analysis for a test that we’ve been told isn’t metaphysical at all, which is one reason why we’re to use it rather than go adventuring with philosophers into abstract metaphysics, or something like that.)
Lee v Minister for Correctional Services, [2012] ZACC 30, 2013 (1) SACR 213 (CC) (11 December 2012) starting at para. 37.
As a colleague put it, the court’s explanation is “far better than anything our Supreme Court has ever come up with”.
One case that isn’t helpful on the “how” of the counterfactual analysis – even if, for other reasons, the result of the case is correct: I make no comment on that point – is Eli Lilly and Company v. Apotex Inc., 2014 FC 1254 at paras. 20-35. I believe that, after you read Lee, if you read Lee, you’ll understand why the discussion in Eli Lilly isn’t helpful. And why the explanation is wrong, even if the conclusion is correct.
The how much evidence is enough aspect – i.e., the Snell robust and pragmatic inference
Another case worth reading is St-Germain c. Benhaim, 2014 QCCA 2207 (CanLII) – see the majority reasons of KASIRER and BÉLANGER, JJ.A (in English).
Really, folks: that’s not even B.C. law any more
Judges, we know, have long memories. They talk amongst themselves. It doesn’t do a lawyer’s clients any good, let alone the lawyer’s reputation, if judges begin with the assumption counsel doesn’t know the applicable law.
Do what we do, not what we say: appeals are from results, not reasons
even if the appellate court also seemingly misstates the law, at least if we give the words used their ordinary legal meaning.
Expert Evidence; Inferences About Factual Causation; Snell v Farrell; Ediger v Johnston
With the end approaching of what would have been, once upon a time, the “long vacation” and litigators gearing up for the fall court season, it’s time for a fashion tip reminder.
The reminder is that is is no longer the law in common law Canada that, somehow, the but-for test is to be applied differently in civil cases where expert evidence is adduced on the issue of factual causation, even in those places where it was once fashionable to assert it was; even in those places in common law Canada where some seem to think it is still in fashion to assert it is.
The 4th Monkey Still in Abstenia 