After reading the Clements decision and David's analysis of it, I couldn't help but thinking of Snell v Farrell, [1990] 2 SCR 311; specifically, Sopinka J's exhortation to use "common sense" inferences. (Snell, remember, was referred to approvingly in Resurfice.) In particular, I was reminded of the following passage near the end of the judgment:

   [Dr. Farrell] was present during the operation and was in a better position to observe what occurred.  Furthermore, he was able to interpret from a medical standpoint what he saw.  In addition, by continuing the operation which has been found to constitute negligence, he made it impossible for the respondent or anyone else to detect the bleeding which is alleged to have caused the injury.  In these circumstances, it was open to the trial judge to draw the inference that the injury was caused by the retrobulbar bleeding.  There was no evidence to rebut this inference.  The fact that testing the eye for hardness did not disclose bleeding is insufficient for this purpose.  If there was any rebutting evidence it was weak, and it was open to the trial judge to find causation, applying the principles to which I have referred.

   I am confident that had the trial judge not stated that "I cannot go beyond this since neither doctor did and I should not speculate", he would have drawn the necessary inference.  In stating the above, he failed to appreciate that it is not essential to have a positive medical opinion to support a finding of causation.  Furthermore, it is not speculation but the application of common sense to draw such an inference where, as here, the circumstances, other than a positive medical opinion, permit.

Based on the Clements framework, would Snell v Farrell have been decided the same way? Or to ask the question differently, could the trial judge in Clements have made the judgment more appeal-proof had he simply drawn "the necessary inference" from such evidence as there was about road conditions, motorcycle overloading, speed and instability?

On 12/19/10 2:38 AM, DAVID CHEIFETZ wrote:

John,

 

I wonder how 3 judges of an appellate court, particularly the BC CA given its current jurisprudence, could miss the fact that Eric Knutsen's analysis is based on the premise - or at least the better interpretation of the analysis is - that Resurfice material contribution DOES produce a conclusion of factual causation on the balance of probability. An essential basis of the BC CA's analysis is that Resurfice material contribution is NOT a test for factual causation. That difference wouldn't prevent the court from adopting some aspect of Eric's analysis if it was nonetheless helpful, but you'd expect them to explain what they'd done and why. 

 

One red flag - that BC judges, at least, ought to have spotted at least this and considered what it means - is that the paper doesn't mention the BCCA's own, very recent, Chambers v Goertz or even its recent enough predecessor Sam v. Wilson. That absence, and the fact that the panel did not acknowledge the premise I've referred to, makes me wonder who read what and how the panel learned of "Clarifying". I'd hazard some enterprising enough research lawyer. This highlights the saw about the dangers of too little knowledge.

 

When all is said and done, the ratio of Clements is this:  the mere fact that plaintiff is able to satisfy the two specific Resurfice material contribution criteria is not enough to trigger the application of the doctrine. It still has to be "just plain wrong" - Eric's plain language explanation of the meaning of the SCC's "basic notions of fairness and justice" for the defendant to escape liability - assuming the plaintiff is able to satisfy all the other requirements of the cause of action - merely because the plaintiff can't establish factual causation on the balance of probability using but-for. What the BC CA seems said is that it wasn't just plain wrong because the Clements case was, in substance, no different from the legion of other cases where the plaintiff is unable to marshall the evidence required to establish but-for on the balance (see para . 64 of the Clements reasons. If it was plain wrong, then all of those other cases should trigger material contribution and the SCC certainly didn't intend that. It's not a coincidence, I think, that the BCCA echoed a rationale that the SCC used in Resurfice in explaining why the Alberta Court of Appeal was wrong - the manner in which material contribution was used, if correct, "would substantially alter the existing law and would have the effect of displacing but-for as the primary test for determining causation. (para. 48)

 

Still, as I've noted in various places, all that has happened, in practice, since Resurfice, is that the results of actions is no different. Plaintiffs aren't losing actions on causation findings that they would have won before Resurfice. Rather,  trial judges are using but-for language to justify the conclusions that, before Resurfice, they almost certainly would have framed in Athey material contribution language. What does that tell us? I could speculate, but I won't since I'd probably say something I'll regret putting in print. I am aware of only one reported case in which a trial judge found that the plaintiff had established factual causation on the balance of probability under but-for AND that, before Resurfice, he would have used Athey material contribution to make that finding in favour of the plaintiff. (Frazer v. Haukioja 2008 CanLII 42207 at para. 215-222 (Ont SCJ) affirmed 2010 ONCA 249). 

 

In any event, even if the analysis is flawed, kudos to the Clements panel for providing what is more than a cursory, conclusory, statement of their reasons on the causation issue.

 

Eric Knutsen is one of the speakers at a conference on causation that I am helping organize. It'll take place in Vancouver in early June. I am hopeful that, by then, I will have convinced Eric of at least some of the errors of his way by then, if only to see the look on the face of any member of the BCCA who is there when Eric resiles from something upon which Clements is based. Still if Peter Birks could resile, so can we lesser mortals. If anybody wants the current agenda for the Vancouver conference, send me an off-list email. Scheduled presenters also include Lewis Klar, Russ Brown and Richard Wright. Richard has kindly agreed to undertake a modern, lawyers', version of the 13th labour of Heracles - adequately explaining, about 30 minutes, current American tort causation law, and significance of the Restatement 3d's proposed changes, to Canadian lawyers and judges. 

 

Finally, I see that I left the "not" out of the penultimate paragraph in my first message. I meant to write 'has not made a whit of difference". I didn't mean to write that the whit of difference Resurfice has made is to increase lawyers' billings. It just worked out that way.

 

Cheers,

 

David

 

 

 

---

From: John Kleefeld
David, thank you for the update. I gave a modified version of the trial decision to my Torts students last year as a tutorial problem. With this decision, perhaps it's worth looking at again, this time, for an exam problem.

John Kleefeld
Assistant Professor, College of Law
University of Saskatchewan
15 Campus Drive
Saskatoon SK Canada  S7N 5A6
tel: (+1) 306.966.1039
email: john.kleefeld@usask.ca
skype: johnkleefeld

On 2010-12-17, at 11:18 PM, DAVID CHEIFETZ wrote:

Dear Colleagues,

 

Those of you interested in, or currently obliged to show interest in, the subject should note the just released Clements v Clements 2010 BCCA 581. It's not yet on CanLII so you'll need to use the BCCA's own link

 

http://www.courts.gov.bc.ca/jdb-txt/CA/10/05/2010BCCA0581.htm

 

The case makes extensive use of ODG member Erik Knutsen's "Clarifying Causation in Tort” (2010), 33 Dal. L.J. 153. (A near penultimate version exists on SSRN.)

 

On first reading of Clements, there’s some good and some bad in the analysis. For those who care to read more, I've written something about it on the University of Alberta Faculty of Law Blog, here.

 

http://ualbertalaw.typepad.com/faculty/2010/12/-and-the-bcca-shall-lead-them.html#more

 

The result, as I see it, is more support for the view that Russ Brown and I share that Resurfice, so far, has made a whit of signficant difference in the results of cases. It isn't helping plaintiffs. It isn't hurting defendants.

 

It is probably helping (some) lawyers' billings though and, of course, contributing to the continued spilling of ink.

 

Cheers,

 

David Cheifetz