(for you Canadian causation junkies out there - all 10 of you)
Clements v. Clements 2010 BCCA 581was released today by the BCCA. It's not yet on CanLII so you'll have to get it from the BCCA website. That link is
On first reading, there’s some good and some bad in the analysis.
The bad includes the BCCA’s repetition of the Resurfice mantra that the material contribution dicta are not new law: "in Resurfice the Court was not purporting to change the law but, rather was reaffirming existing principles" according to the BCCA (para. 49.)
I think many judges and lawyers, and especially academic lawyers (law school professors, even two "local" types) will be astounded to now find out that, prior to Feb 7/07, a claim in negligence could succeed in Canada without proof of factual causation on the balance of probability.
(Anybody think that view would have / will help them on Prof. Brown's torts exam? Or that Prof. Klar will now amend his text? Didn't think so. Now, if the McGhee that was, and is again, had been the law in Canada after Snell, there might be some validity in the SCC's claim. But it wasn't.)
In any event, if the SCC claim about what the content of the material contribution doctrine before Resurfice was correct (it is not - as I showed in earlier posts on this board), the the BCCA majority was wrong in Mooney2004 BCCA 402, the Ont CA was wrong in Cottrelle2003 CanLII 50091 (ONCA), and again in Aristorenas2006 CanLII 33850 (ONCA – majority). And, if theCAs were, the SCC should have granted leave. The CAs were not wrong on the law as it stood. The SCC didn’t grant leave.
Clements holds that the mere fact the plaintiff is not able to adduce the evidence required to establish causation on the balance of probability does not trigger the Resurfice material contribution doctrine.
Whether the Clementsis, in substance, helpful to the practitioner on the question of when Resurfice material contribution does apply - rather than when it does not - is a matter of opinion. It's mine that, on the balance, it isn't. That is at least because the BCCA, after correctly noting that the application of Resurfice material contribution does not produce a finding of factual causation, and of course bound by the errors the SCC has made (even if the errors are obiter), proceeds to repeat them in discussing the examples of fact patterns to which the SCC said material contribution will apply: those in Cook v Lewis and Walker Estate v York Finch Hospital.
One problem with the use of Cook- I have mentioned this before - is that unless Resurfice purports to overrule the rule in Cook v Lewis, that facts are but-for pattern and the application of the rule produces a finding of factual causation on the balance of probability. (oops). If that is the still the correct interpretation of Cook, then the BCCA's view that material contribution is not a method of producing a finding of factual causation is wrong. (I believe the old phrase is "hoist on one's own petard".)
As for Walker Estate, what's the relevant difference between (a) there not being enough evidence to infer a probable conclusion as to what some person would have done, for whatever reason and (b) there not being enough evidence for the court to infer a probable conclusion as to what would have happened to the bike but for Mr. Clements manner driving. Was the BCCA suggesting there's something inherently different about what one might call "decision causation" - the Walker situation, from causation merely involving issues such as vehicle speeds, tyre reactions, road conditions etc? There is academic writing on the question of whether there is anything unique about decision causation. One such piece is mentioned in the article by Prof. Knutsen the court refers to extensively: Vaughan Black: "Decision Causation: Pandora's Tool Box" in Emerging Issues In Tort Law, J. Neyers et al. eds. (Oxford: Hart Publishing, 2007) 309-30.
I’m sure that Clements will get mentioned by somebody, in some context, at the June 2011 CLEBC conference. One of the scheduled speakers is Professor Erik Knutsen (Queens), the author of the article extensively quoted and relied in Clements. Other speakers are U of A Law's own Professors Klar and Brown.
The problem is that the SCC claimed that its two circumstances set out in para. 25 of Resurfice are "exceptional" when they are in fact common place. The second circumstance -- that the defendant breached the duty of care it owed to the plaintiff -- is an independent requirement of liability in negligence anyway, so it can't count as exceptional. If the first cirumstance -- that science can't prove "but for" causation -- were not the case, then there would be no reason to worry about material contribution in any event.
In other words, whenever the plaintiff would want to invoke material contribution, the "exceptional circumstances" obtain. Talk about an exception swallowing up the rule!
Where the BCCA goes wrong is that it misinterprets Henry on the obiter dicta/ratio decendendi distinction. Presumably, whenever the SCC says something, it "intendes" to provide guidance to lower courts. But not everything we intend is so, and if the statement is actually a mess, then the intention fails. So the lower court should ignore it -- as it has indeed been told to do by the higher court in Henry.
Posted by: Gareth Morley | December 22, 2010 at 01:34 PM
Yeah, well, YOU tell the SCC that the obiter material contribution discussion in Resurfice isn't reasoned well enough to be considered precedential. I mean, what litigator would want to do that? (Oh, right. Never mind.) For whatever reason, the panel chose to atempt to reinvent what the HL had cleanly enough laid out in Fairchild and Barker. Go figure.
Besides, according to the SCC, you're wrong. Fullowka asserts that Resurfice clarified causation law, so the problem you set out in para. 2 can't really be a problem because of Resurfice, because it's the very reason that the SCC in Resurfice overruled the Alta CA's use of Athey material contribution in Resurfice.
The BCCA in Clements saw the problem you point to your second paragraph. That's clear enough in para 64 or 65 - the para. in which the court finally gets around to applying the law to the facts. It's also the point that Russ Brown, Vaughan Black, and I have made jointly and separately.
Of coure, if one holds to the view that Resurfice only clarified the law, then Resurfice isn't a problem because the law under Athey was almost perfectly clear, right?
Anyway, I suggest that misinterpreting Henry, if it did, is the least of the BCCA's errors. Some years ago, an Ontario trial judge who later became an Ontario Court of Appeal judge, wrote that it ‘ignores reality’ to expect that lower court judge will use very technical principles of stare decisis to avoid applying what seems to be the current thinking of a binding appellate court on some point of law, even if it is expressed as an obiter.
However, in the end result, the BCCA was correct in allowing the appeal and dismissing the action. I have to believe there will be a leave motion. This one might get leave, if only because of the growing conflict between Ontario and BC. And, the BCCA's adoption of the "just plain wrong" explanation offered by Prof. Knutsen. Somebody might consider that's just a bit too subjective.
Cheers
Posted by: David Cheifetz | December 22, 2010 at 03:01 PM
However, I do have a question about what tort should look like if a Platonic philospher-king got to rewrite it.
Science does not tend to answer questions like, "Is it more likely than not that my injury/illness/condition was caused by X?" Accident reconstructionists answer questions like this, but not really as scientists, as opposed to scientifically-trained advocates.
Science tends to say something like, "The relative risk of injury/illness/condition of those who experienced A compared to those who did not is Y." If Relative Risk is greater than 1, then some of the people who experienced A and the injury/illness/condition did so because of ("but for") A, and some did not. Science can tell you out of 1000 such people, how many that is true of, but it can't tell you whether it is true of this particular plaintiff.
We might be tempted to think that if science says it is true of 501/1000 such people, then it is true on a balance of probabilities of this plaintiff, but that may in fact be a mistake.
In any event, even if the relative risk is such that only 499/1000 such people have the illness/injury/condition because of a wrong, we still know that the tortfeasor is responsible for N such conditions, where N=499/1000 X (number of people who experienced A because of the tortfeasor and developed the condition). That could be a lot of people and if the illness/injury/condition is bad, a lot of damage.
Corrective justice and deterrent theories of tort law would agree that the tortfeasor ought to pay something. I would think it ought to pay 49.9% of the damages of all the people who experienced A becuase of the tortfeasor and developed the condition.
But that's not how our tort law works. Our contract law is starting to, using "loss of chance" principles.
Posted by: Gareth Morley | December 22, 2010 at 03:02 PM
Just to clarify, I wrote my 3:02 pm comment before I saw David's 3:01 pm comment.
Posted by: Gareth Morley | December 22, 2010 at 03:19 PM
It's a hotly enough debated topic whether traditional corrective justice calls for a payment by somebody to anybody where the chance the former injured the latter isn't more likely than not; or some other flavour of the (something)share approach you seem to be suggesting.
The House of Lords certainly thought in Barker v Corus, though, that justice required each of the wrongdoers pay something, even where there was a possibility that they weren't at all cause. The conceit in Fairchild was that all of the potential causes (wrongdoers) were sued.
The only way tort will get to look like what a Platonic philosopher-king might write is if we junk what we have completely. That won't happen, for reasons the HL set out in White v Constable. On the other hand, Australia seems to be attempting to do something like what the PP-K might do, in some areas of tort law, based on Prof. Stapleton's views (at the time) of what causation means and what's required to prove it.
Posted by: David Cheifetz | December 22, 2010 at 03:35 PM
Perhaps, though, a more interesting question is how the Clements panel could read Prof. Knutsen's "Clarifying Causation" without realizing that it is premised on the assumption that Resurfice material contribution IS a test for factual causation. You'd think the fact that the article doesn't cite ANY of Chambers v. Goertz, or Sam v. Wilson, or even the pre-Resurfice Mooney, would have made somebody wonder about something. Of course, that presumes that that somebody then took the time to dig deeper. If that somebody was a research lawyer / clerk, well, there's nothing in the text of the reasons that suggests he or she turned over the necessary rocks.
Still, that doesn't eliminate the possibility that the panel had the material but chose to ignore it. On the other hand, one would think - ok, I think - that if a panel were going to do something like that, they'd acknowledge what they've done by stating they're using an analysis they find useful even though it comes from a source which is (perhaps) at odds with their view.
Another point is, I think, that at the end of the day the trial judge and the Court of Appeal weren't asked to make a something [a conclusion of factual causation on the balance of probability] from nothing [no evidence whatsoever from which that conclusion could be inferred]. Rather, the question was whether there was enough evidence from which to validly infer that something on the balance of probability.
Snell notwithstanding, I've always found something a might odd about the proposition that we should accept the inferences of unqualified lay persons about the probability of some occurrence, where experts who were permitted to testify about about that issue precisely because the lay person is not qualified decline to concede [the likelihood of]probability. This isn't a matter of the difference between scientific certainty and law's possibility that Snell mentioned. It's about ignoring informed opinion that the relevant evidence isn't sufficient for probability.
One could start the chasing one's tale dance by saying that the scientist / expert requires a higher level of certainty about the likelihood of occurrence before he or she will concede probability, but that's a weasel.
Finally, for you litigators and hoping-to-be judges in the future types (who practice in where there still are civil trials with juries, consider this. Try to pose the questions you'd have to pose to the jury to get the answers to trigger the application of the material contribution test under the "just plain wrong" the defendant be permitted to walk explanation Clements seems to adopt. Maybe some questions, but all? Apart from that, just plain wrong to whom? The judge? the jury members get to decide what's wrong? Let alone "plainly wrong?"?
Does anyone think the SCC was only clarifying the law of causation if, should the trial judge decide the but-for test is not applicable - that's a matter of law - there can't be a jury trial as a matter of principle given what's involved in deciding whether the material contribution test applies or, in practice, the jury notice is almost going to be struck on the grounds of complexity?
DC
Posted by: David Cheifetz | December 22, 2010 at 07:44 PM
Now for a few bits and bytes (pun intended) of crowning irony.
What the BC CA called "circular causation", borrowing from the law review article, the rest of causation scholarship calls "overdetermined": meaning that the consequence has more than one separately sufficient causal set (duplicative causation) or there are multiple alternative separately sufficient causal sets but only one is the actual cause because it preempted the others (preemptive causation)
For duplicative causation, imagine two separate fires each strong enough to raze a house, merging before they reach the house.
For preemptive causation, imagine that one of the fires reaches the house and razes it before the other fire reaches the house.
If one takes the BC CA reasons at their word, the court has declared that, for tort law in BC, overdetermined injury does not exist. That's because, as the law now stands in Canada - BC is still part of Canada, though some might sometimes wonder - it seems as if there is no method for determining the existence of factual causation other than but-for. And, given that the BC CA has just said that but-for cannot be validly used in cases of overdetermined harm; that is, circular causation ...
Anyway, if the law does not recognize any way to test for a condition, then the law has to pretend the condition doesn't exist.
Which means that, to everybody's undoubted surprise, the next time in BC that two or more vehicles (each driven by a lawyer) strike some unwitting person - let's say a judge - who is jaywalking - causing the judge very serious injury, in circumstances where it is probable that the same injury would have occurred even if only one of the vehicles was involved, the judge and the lawyers are going to find out that the apportionment legislation in BC doesn't apply. That's going to be significant problem for the judge.
The apportionment legislation won't apply because a prerequisite is that there be conduct of two or more persons that is a factual cause of the same injury. (But, the effect of Clements is that, as a matter of law, the two lawyers' driving isn't a factual cause - because but-for doesn't apply - but just a cause under "policy".
It's beyond Ivory Snow certain - we can take it as a given - that the Clements panel did not intend to rule that apportionment legislation does not apply to the type of accident I just described.
There are other similarly ironic (for law) consequences that will become apparent over time.
None of what I've outlined will, of course, come to pass because the next judge faced with the issue(s) will say that it is wrong to assume the Clements panel intended such consequences. He or she will be right, of course. There's going to have to be some fancy dancing. The witty judge might even tort out the Quinn v Leathem mantra.
I could be wrong about this, of course. But I doubt it.
DC
Posted by: David Cheifetz | December 26, 2010 at 04:28 AM