Dear Colleagues
Those interested in the Canadian picture may find the these two very recent decisions
paradigmatic of something in Canadian jurisprudence. At the least, they're iconic bookends of two very different approaches to analyzing cases of factual uncertainty.
I find ironic that in Goodman, a trial judge faced with a very complicated medical problem carefully 'analyzed' her way through the evidence to arrive at a but-for based decision in favour of the plaintiff. There's no doubt that the trial judge was cognizant of recent Ontario Court of Appeal decisions criticizing trial judges' use of material-contribution.In Leslie, however, the trial judge faced with a far less complicated fact pattern, decided, rather offhandedly in my view based on the content of the reasons, to resort to the material-contribution doctrine to hold the plaintiff had proven factual causation (implicitly, but not explicitly, on the balance of probability). It's reasonable to suspect that the NS trial judges' willingness might have been influenced by his own Court of Appeal's overall silence on the issue.
The cases come from different provinces. In theory, however, the applicable law (whatever it is) is the supposed to be the same in both provinces.
I suspect appeals will be filed in both cases.
Regards,
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David Cheifetz
Smockum Zarnett Percival LLP
Toronto, Canada