Spilling Ink

As some readers know, the Supreme Court of Canada (the “SCC”) wrote in 2007:  “Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful to catalogue the various debates.” (Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 SCR 333 at para. 20)

About 5 years later, the Supreme Court found it necessary to spill some more ink on the subject because, in its own words, its discussion in Resurfice of at least one very important aspect of the  subject was “incomplete”: Clements v. Clements, 2012 SCC 32 at para. 34.

I plan to spill some more of the electronic equivalent, pixels, to show why it was and still is both necessary and helpful to catalogue (maybe even refer to) at least some of the various debates, and why it would have been helpful if the Supreme Court had been just a bit less dismissive, and more careful, in both Resurfice and Clements.

Pull up a chair and a glass (or more) of your favourite tipple. As ever, these posts assume that the reader has a basic level of familiarity with the subject matter.

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Don’t Forget The Audience

 because, in the words of Chilliwack, “if there’s no audience there just ain’t no show”.

Who is the audience that has been forgotten?  The Canadian public.

Who is it that is too often forgetting?  Judges.

Given the state of current law on proof of causation in negligence , it is too often the case the only honest, sure, advice we practitioners can give our clients on causation issues, in any case but the most obvious, is: “you pay your money (to us), you take your chances”.

This is a good thing (for practitioners who get paid), no? And for commentators who wish to spill ink. It is clearly not for the Canadian public.

Lawyers, judges, and litigants know the consequences of a finding of causation assuming all of the other requirements of the cause of action are satisfied. The defendant will be held liable to pay some amount of money to the plaintiff. See Snell v. Farrell, [1990] 2 S.C.R. 311 at 326.

Causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former.

Causation isn’t an academic exercise when the issue is raised in court. If the judge or jury cannot find causation, the action is supposed to be dismissed. The plaintiff, even if injured, gets nothing.

A failure to to deal with the causation issue in an adequate manner – whatever adequate means (which is whatever the legal system says it means, nothing more, nothing less)) –  has real consequences to the parties to the litigation.