All you need is … the facts (usually)
even if the trial judge misstates the law. Or it’s not clear what the judge thought the law is.
That’s why appeals are, broadly, from the evidence, not the judge’s reasons.
If … (intermezzo)
Assume that Clements material contribution to risk and Walker Estate material contribution to injury do not apply.
If, during argument or submissions on causation, a judge (motion, trial, appellate) suggested to you that, on the balance of probability, it was commonsense that the defendant’s fault (or the plaintiff’s contributory fault) was a factual cause of the plaintiff’s injury, would you risk asking the judge what “commonsense” meant?
If … (East)
trial judges across Canada continue to misstate or misunderstand Supreme Court of Canada decisions, do we blame the SCC or the trial judges? I plan to post a series of examples in individual messages. This is the first.
I’ll start with a recent decision from Nova Scotia: National Bank Financial Ltd. v. Potter, 2013 NSSC 248.
Some of you might recall the underlying facts. If you’re unlikely, some of you might have an unhappy reason to recall the underlying facts.
Don’t call us, we’ll call you
No, not the title of and message in the sly Sugarloaf song, here, though it’s worth listening to.
Rather, its the SCC’s dismissal of the leave to appeal application in Goodman v. Viljoen, 2012 ONCA 896, leave to appeal denied 2013 CanLII 42519 (SCC) (July 11, 2013).
The message the SCC is probably sending is that, in civil cases where the appeal involves factual causation – cause-in-fact – the Court is unlikely to grant leave to appeal on the causation issue where the Court will be able to characterize that issue as merely whether there was enough evidence to support the trial judge’s conclusion.
It’s more than just arguable that that’s entirely the wrong characterization of the problem in Goodman but, on this point, the SCC has spoken.
A trial judge’s duty: correct explanations
More than 1 year has passed since the SCC released Clements v. Clements. More than 6 years have passed since the SCC released Resurfice Corp. v. Hanke.
There is no valid reason for trial judges to still write that a defendant’s negligence “caused or contributed”, or “caused or materially contributed” to the injury, where the trial judge means that, on the balance of probability, the negligence is a cause of the injury. (Leave aside the the questions raised if the trial judge doesn’t explain what he or she meant by “materially contributed”.) The negligence either is a cause of the injury or it is not. If the negligence contributed to the occurrence of the injury, it is a cause of the injury.
The 4th Monkey Still in Abstenia 