Date: Tue, 14 Aug 2007 15:22

From: David Cheifetz

Subject: Judges, Buses and A Butterfly in Tokyo

Jonathan,

Let's see if I can wrap up my contribution to this dialogue.

The discussion began with my suggestion that the judge hearing the leave motion in Heward was wrong in granting leave on the basis that he did: essentially that there could be a good argument that the issues involved in proving the causal connection between Eli Lilly's alleged wrong(s) and the relief claimed were so individualistic (sufficiently outside the common issue sphere) as to made the class action procedure inappropriate. I also pointed out that both certification judge and leave judge hadn't, it seemed, stopped to consider whether the appropriate test for the causal connection was but-for or material contribution. The certification judge's reasons are based on but-for. The leave judge asserted that the application of but-for poses common issues problems.

I suggested that, under both pre- and post- Resurfice analyses, (1) there was a good argument that the proper test was material contribution but (2) that even under but-for there was a strong enough argument that there weren't the individualistic issues that so concerned the leave judge or (3) in the jurisprudence was so screwed up that (4) no matter how one juggles the balls, the leave judge should have deferred to the certification judge's discretion.

What is clear is that both levels of reasons do not consider what the proper test is. On that issue, all I'll add - somebody reading this may know if there's a dicta / ratio in any of the cases - that the existence of the class action remedy requires judges not to apply but-for, or material contribution, or any other test for causal connection (should there ever be one), which is applicable to the class action procedure in such a way that the mere invocation of the test is necessarily (in a practicable sense) inconsistent with the rationale underlying the creation of the class action procedure. This tension is, I think, implicit in the use of but-for (which almost seems individualistic by definition) and explicit in a failure to warn case where the question is a "subjective" what would P have done if told "X" rather than "not X".

Anyway, we're now at the narrow question of whether the Hollis test, whatever it means, is the flavour of but-for applicable to the Heward failure to warn claim.

It wouldn't be, of course, if was "unworkable" under pre-Resurfice analysis, or "impossible" to properly apply under the Resurfice analysis, or not applicable even if could apply because of a "Walker-like" exception, but let's assume none of those problems apply and see where it takes us - in terms of whether leave to appeal should have been granted in Heward on the basis that it was.

Given Reibl v Hughes, that test in the Heward context has both subjective and objective components. The question you've called the (A1) issue is : what would this plaintiff have done if given the correct information. Under Reibl, the answer for Canadian jurisprudence has subjective and objective aspects. On the subjective, we know what the plaintiff has to say. I would have done something different. The plaintiff has to say that or the action fails, there. So, there's no real issue on that point. The certification judge was entitled to assume that's what the plaintiff would say and the leave judge should have assumed that, too. That's not the end of the matter since the trial judge isn't obliged to accept the plaintiff's protestations: that's the Reibl objective component. The judge will accept the plaintiff's protestations only if objectively reasonable: what would the reasonable plaintiff in this particular plaintiff's position have done. But, since it's objective, doesn't that suggest on its face it's a sufficiently common issue. The reasonable plaintiff is a common issue, right? And, ask yourself, who is going to lead evidence on the objective component - that the objective plaintiff would have gone ahead regardless? There will likely be something negative from the plaintiff. But most will have to come from the defendant(s) who shouldn't have all that much difficulty adducing appropriate evidence as to what even the objective moron in a hurry would have done (or not done) if properly informed.

So, when looked at it terms of how the events have to play out when the action is tried, it seems to me the leave judge's concerns about the use of but-for were overstated.

Or, as I said, since the SCC has nicely left us in a pickle that we don't know what the causation law means in complicated cases in Canada any more, and for Ontario, the CA has made the situation even juicer by claiming that Resurfice didn't change the matter, the leave judge should have said that, given the state of the jurisprudence, that he did not have good reason to doubt the correctness of the certification decision. Or, if we drop down from theory to the literal words of the Ontario procedure, Eli Lilly couldn't satisfy the specific tests for the granting of leave under Ontario Rule 62.02(4):

62.02 (4) Leave to appeal shall not be granted unless,

(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or

(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

There are no conflicting decisions triggering the rule (conceded by the leave judge) and there's no good reason, unless we say that reason is the inadequate state of the causation jurisprudence and it involves a matter of sufficient importance that it should be clarified. The leave judge might have said that but he didn't. (And, of course, if one takes the Ontario CA literally then there's nothing that needs to be clarified, right?)

Does that amount to a certain amount of washing one's hands of the problem? Yes. But, then, the CAs and the SCC have created it. Let them fix it, which they seem to be disinclined to. That's their job which, I've argued elsewhere (as have others), they're not doing adequately in the causation area.

In summary, I think we've ended up at cross-purposes. You've suggested that Heward's but-for is the applicable test. There are, I agree, arguments that the Heward facts should be dealt with via but-for. (One has to ignore SCC jurisprudence to make those arguments; however, if the SCC believes it is entitled to ignore its own jurisprudence, then why can't we?) I've responded that even if it is, it doesn't produce a basis for the leave judge's conclusion that the application of that test produced common issue problems.

I think that wraps things up. On the other hand, the area is so messy that who knows what notions lurk in the judicial minds. Perhaps what we need is a court to say that there's no real problem with the causal connection issue in Heward because, on the facts of Heward, (A) it's an inference which the court is entitled to draw from no evidence at all, and because (B) otherwise innocent plaintiffs would be deprived of the remedy they're entitled to because of our too complex rules of causation. (We call that a legal fiction, right?) But no court would say (A), right? Wrong.

B.S.A. Investors Ltd. v. DSB, 2007 BCCA 94 at para. 43

[43] I would add that there is an important difference between drawing an inference as to causation from circumstantial evidence, which is often done, and drawing an inference as to causation from no relevant evidence at all, which may be done only in the rare circumstances set out above. This is the difference alluded to by Lambert J.A. in Haag when he distinguished between a logical inference and a legal one; the legal reference should not be resorted to unless the logical inference is impossible to establish with either direct or circumstantial evidence.

And no judge would write (B), right? Wrong. Consider this from almost 20 years ago. A very senior Canadian judge delivered a paper in which the judge wrote that some people “perceive” that too-technical rules for factual causation are depriving injured people of compensation they ought to obtain, stating: “I would suggest that it is because too often the traditional ‘but-for’, all-or-nothing, test denies recovery where our instinctive sense of justice — of what is the right result for the situation — tells us the victim should obtain some compensation.” Who? Where? Hon. B. McLachlin, “Negligence Law — Proving the Connection” in Mullany and Linden, eds., Torts Tomorrow, A Tribute to John Fleming (Sydney, LBC Information Services, 1998) p. 16.

Regards,
David

----- Original Message ----
From: Jonathan D. Tweedale
Sent: Monday, August 13, 2007 7:50:31 PM
Subject: RE: Judges, Buses and A Butterfly in Tokyo

David,

Your argument from Walker Estate is convincing. I will reflect further on the significance of that (problematic) case.

I would, however, take issue with your argument from Hollis v. Dow Corning.

Hollis stands for the principle that an inadequate warning will be deemed to be causative of an injury even if a counterfactual adequate warning would not have been passed along to the patient by an intermediary (such that, strictly speaking, the inadequate warning is not the “but-for” cause of the injury). But in Heward the causation question is whether, if a counterfactual adequate warning had been given, the patients would have taken the drug. (I am intentionally not referring to Health Canada, or any other intermediary, here.)

The causation issue in Heward is analogous to the issue in Hollis as to whether the patient would have consented to the operation had she been properly warned of the risk (the “first” causation question from Hollis). This “first” causation question in Hollis was treated as a “but-for” causation question. Had the plaintiff not been able to show that, as a matter of fact, she would not have consented to the operation had she been properly warned of the risk, then the Court would never have gotten to the “second” causation question – namely, the question whether it is open to the defendant to argue that its own inadequate warning made no causal difference to what the doctor had told the patient.

My assumption (A1) – that particular class members would not have agreed to take Zyprexa if properly warned of the risks associated with the drug – is analogous to the “first” causation question in Hollis, not the “second”. (I agree with you, however, that if (A1) were an instance of the “second” causation question in Hollis, then the only issue would be the adequacy of the warning.)

On the basis of the preceding, I conclude that if we are applying Hollis, the proper test for causation in Heward is but-for, not material contribution (assuming that we are getting to proof of causation via (A1)).

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