*updated 8 Feb 2017
Or, that didn't last very long, did it?
One of my New Year's resolutions was to avoid commenting on any social media platform, even my own blog, about any silliness from any Canadian court below the Supreme Court on any subject having even the remotest connection to causation or contribution issues in any area of Canadian law. I'm about to break that resolution here and I've just broken it elsewhere for the same reason.
The basis for the resolution is that, to my knowledge, I'm no longer practising law in Canada, or for that matter elsewhere on Earth, at least while I am awake. I am not aware of anything to indicate somnambulistic law practices; although, I suppose that might be only because my sleeping-practising self is more astute than my waking self. The result is that whatever the Canadian courts say doesn't matter to me on a personal level, so long as it doesn't affect my friends and family.
On the impersonal, general, level, since I'm no longer in Canada, and my focus isn't Canadian law, it makes sense to ignore the scurrying of the minions, here, unless the minions say something extremely important, and wait for their masters to speak. On the whole, all pretensions to the contrary, whatever any Canadian court, even the Supreme Court, says about causation in private law areas is of little general significance except to Canadians and those who want to blame Canada for everything else that goes wrong, too.
The reason I'm breaking the resolution is that the opportunity is too good to pass up because I get to metaphorically tweak the noses of a few judges, a few of whom I hope will still call me a friend.
As is usually the case when I'm writing about judicial pronouncements on causation, it's worth quoting from or paraphrasing or twisting something from Lewis Carroll or Dr. Seuss. Or combining the two. In this case, I'm doing the latter.
In addition, you should consult any apocryphal dictionary that is available to you. In this case, if you refer to the appropriate page in the undoubtedly soon to be published apocryphal Dictionary of Obscure and Obtuse British Columbia Law and Facts, Revised Rules for 47-Person1 Squamish (TM), and Tofino-Ucluelet Bestiary (Squamish, B.C., 20__) you'll see that the entry for "alternative facts" directs you to the entry for "alternate reality".
The entry for "alternate reality" reads, in part, as follows:
"the apparently readily accessible, if only to some British Columbia lawyers and judges, version of Canada in which the courts of British Columbia operate, at all times, in and on a higher rung in the Canadian legal system than does the Supreme Court of Canada so that (a) the law in British Columbia is what the British Columbia courts say the law is, not what the Supreme Court of Canada claims the law is and (b) British Columbia lawyers and judges are required, not just entitled, to follow the law as proclaimed by the judges of the courts of British Columbia, not whatever it is that the Supreme Court of Canada might have to say on the subject at any time."
The theme that you should apply to the British Columbia and Ontario Court of Appeal decisions I am about to discuss, and how you should understand the decisions (if Ontario or British Columbia, or even Canadian law matters to you) is:
"When we use a word, it means precisely what we say the word means because we said so, even if we were and are not entirely sure what the word means; unless, of course, the word means something else. In which case, however, we say that's what it means, instead. We have said what we meant and we always mean what we say. Would you like some tea with honey? And some cookies? They're very good. We've even baked some cookies with nice green plant material, too, if you get our drfit ... drtfi... trifd .... point."
In Surujdeo v. Melady, 2017 ONCA 41, the court dealt with the proper text of a question to be put to the jury where the issue is proof of factual causation in a personal injury action.
The trial judge had ruled that the question should be phrased this way: "[H]as the plaintiff established on a balance of probabilities that [the doctor's] breach of the standard of care was a cause of [RS'] death?
The emphasis was added by the Ontario Court of Appeal.
Now, before we go any farther, we should be able to agree that the content of the question to the jury should match the law the question relates to. The question put to the jury, so long as it makes sense, could be the same question as the judge would asks zeself, when the judge is trying the case without a jury. After all, as you know (or will eventually learn) in trials without a jury, the judge is both the judge of the law and the trier of fact, so that as the judge of the law, the judge instructs zeself on the law that govern the judge as the trier of fact. The judge, as the trier of fact, is bound to follow the instructions given to the judge, as the trier of fact, by the judge as the judge of the law.
Got that? It's perfectly clear. What it means is that judges, as judges, even as Canadian judges dealing with questions of fact that, they have been told, are entirely are matters of ordinary common sense not requiring any sort of resort to the metaphysical (abstract or concrete) are nonetheless capable of reaching the state of "negative capability"2 albeit (in some cases if not all) without the exalted aspects historically attached to that ability. This does not mean that the judges suffer from "cognitive dissonance"3.
Also, before we go any further, we should also remember (at least until we're told to remember differently),4 that in Athey v Leonati,  3 SCR 458, 1996 CanLII 183, the Supreme Court of Canada specifically stated a number of times, as it did at para. : "It is sufficient if the defendant’s negligence was a cause of the harm”. (Emphasis in the ORIGINAL.5)
As you may already know, or will learn, that part of Athey has never been overruled, whatever might be the status of any other part of Athey. So, when it comes to deciding whether any alleged negligence of a defendant caused the plaintiff's injury, the trial judge is required to understand, to instruct zeself when sitting without a jury, that "it is sufficient if the defendant’s negligence was a cause of the harm [Athey, para. ]... because "[i]t is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury. … As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. [Athey, para. 17]" (Emphasis in the ORIGINAL.)6
It is trite that the law is the same whether the action is tried with or without a jury. As such, it follows that that wording, once upon a time, if it appeared in the form of a formal question for the jury, wouldn't be a problem so long as the trial judge adequately explained what "a cause" meant in the trial judge's charge to the jury.7
Nonetheless, in Surujdeo v. Melady, without referring to Athey, the Ontario Court of Appeal held that a jury question in the form of
[H]as the plaintiff established on a balance of probabilities that [the doctor's] breach of the standard of care was a cause of Rossana Surujdeo's death? [Emphasis added (by the Ontario Court of Appeal)]
was in the wrong form because it did not track (follow) the language of the but-for test mandated by almost everybody’s favourite decisions – not mine, though - Clements v. Clements, 2012 SCC 32 (CanLII),  2 S.C.R. 181 and Ediger v. Johnston, 2013 SCC 18 (CanLII),  2 S.C.R. 98.8
Informed readers will know that neither of Clements nor Ediger involved jury trials. Both decisions in cases on appeal from decisions of the British Columbia Court of Appeal on appeal from decisions of trial judges sitting without a jury. Neither of Clements nor Ediger make any comments, explicit or implicit, about the content of the questions to the jury in actions tried by a judge with a jury.
Of course, that Clements and Ediger don't contain comments about the content of the questions doesn't mean they don't affect the content of the questions. That is because the content has to conform to the law that defines the content of the questions to the jury: questions designed and intended to have the jury make a finding fact which the judge will then apply to render judgment.
As to what that law required, hence what the language should be, the Surujdeo panel adopted the analysis in a 2015 Ontario Supreme Court decision. In that case, the trial judge wrote - I quote from Surujdeo at  because it is accurate:
[T]here is no compelling reason not to use the language of causation from Clements and other cases when drafting the questions for the jury on causation. The legal test as articulated by the Supreme Court of Canada is clear: but for the defendant’s negligent act the injury would not have happened.
I will instruct the jury on the law as it relates to causation and will use the “but for” test. I see no advantage to departing from the legal test as articulated by the Supreme Court of Canada when asking the jury to answer the questions on causation.
The questions on causation will read as follows: If your answer to question 1(a) is YES, have the Plaintiffs proven, on a balance of probabilities, that but for the breach of the standard of care, the injuries of [the plaintiff] would not have occurred?
I won’t mention the name of the case (at this point) or the name of this Ontario trial judge (at all) – you can look up both yourself – because (1) I consider her a closer friend than any of the Court of Appeal judges; (2) she is very able; and (3) see items 1 and 2.
While I also consider one of the ONCA panel at least a friend through our once mutual profession, although we have not spoken in years - even though he plays golf with another good friend of mine - the closer friendship trumps. I did not have the privilege (as best as I can now recall) over ever meeting the other members of the ONCA panel before I left Ontario and have not had the privilege since.
In Surujdeo, the ONCA panel went on to rule that the trial judge’s error did not produce “some substantial wrong or miscarriage of justice” so did not justify a new trial. The reason was that the Surujdeo trial judge (who I think would also call me at least a friendly acquaintance), in his charge,9
"thoroughly, accurately and repeatedly instructed the jury on the ‘but for’ causation test” including when reviewing the questions to be answered, so that the jury” would have clearly understood they were required to apply the ‘but for’ causation test and the incorrect language in the jury questions would not have misled them."
Sounds simple, right? Would that it were.
We should be able to agree that, in Canada, at least until a competent legislature rules otherwise or the Supreme Court Canada changes its mind after your case is over - in which case you were right then if (perhaps) ultimately wrong in ways that matter - you (as a student, legal academic, practising lawyer or judge) can't go wrong by sticking to the language mandated by the Supreme Court of Canada for jury questions on the issue of factual causation, especially if the wording that you choose amounts, in law, to nothing more the explanation of the meaning of the words in the jury question. That has to makes sense, right? After all, what you are saying is what they said. No goose, no gander; just honest, permissible copying (if you cite the proper authority) and permissible, in reasons for judgment (if the judge forgets to cite authority) plagiarism.
Also, using the mandated wording has to be accepted as being a meaning a properly constituted jury is able to understand, or else the case would be, by definition, too complicated for trial by a jury. However, no Canadian judge has yet suggested, at least in public, that the mere fact litigation involves a question of factual causation means that the case is by definition too complicated for a jury. It is, after all, at the end of the day merely a mattter of the application of ordinary Canadian common sense which, by definition, must be common or it wouldn't be common sense.
I think we should be able to agree why that is so as a mater of Canadian law: the reasons I gave above.
But, if we can't, then there's at least this. Every case where factual causation is not admitted will involve a question of fact: the question of factual causation.
We should, in any event, be able to agree that, at least in principle, the better approach is for the jury question to follow the language that the law uses to define the content of the law that question of fact relates to. That should tend to simplifies matters as to what the form of the question has to be. It should tend to reduce unnecessary appeals. As such, it is an instance where consistency is a virtue. Even British Columbia law would probably agree on that much. I mean, would probably agree on the need to reduce unnecessary appeals so that, in this instance, consistency could be presumed to be a virtue. That presumption is only that consistency is a virtue; not, in the appropriate case, necessarily a requirement.10 This isn’t an instance of Emerson's “foolish consistency [which] is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.”11 And their betters, of course: the judges of Canada's courts of inherent jurisdiction, including the trial and appellate courts of Ontario and British Columbia.
This advantage of consistency is undoubtedly why British Columbia has, in its published Civil Jury Instructions (“CIVJI”) - published so that there will be consistency amongst judges trying civil actions with a jury12 and so the content of the questions will be consistent with the applicable law - set out civil jury instructions which state the question is to be in this form:
Did the ______ cause [or cause or contribute to] the plaintiff's injury.
(Emphasis added by me.)
OOOPs. That's a 3 "O" ooops. I chose 3 "o"s because that's one more "o" than John Lennon has, in total, in his name and one more than he used in each of the words in the classic phrase "goo goo g'joob", from I Am The Walrus (Lennon & McCartney, 1968).
Desharnais v. Parkhurst and Romanowski, 2013 BCCA 113 is, to my knowledge, the British Columbia Court of Appeal's most recent reported word on the subject of the content of the jury question on factual causation in civil actions. Desharnais was argued in December, 2012 with reasons released in March 2013. I mentioned both the dates of argument and release because Desharnais does not mention Clements on this issue, even though Clements was released in June 2012.
Desharnais mentions only Athey. There is no explanation for this odd omission since, of course, it was then as it is now Clements, not Athey, which is the last word on the meaning of the test for factual causation in negligence actions in Canada and so, at least in theory and principle, British Columbia, too. I'll get to why I wrote "at least in theory and principle" in more detail at the end of this piece.
Para. 60 of Desharnais is: "The jury questions are set out above at para. 32. Questions 3, 4, 5 and 6 are straightforward questions on the issue of causation. The questions are:
3. Did the accidents of June 29, 2006 or August 14, 2007 cause the claimant physical injury?
4. Did the accidents of June 29, 2006 or August 14, 2007 cause the claimant emotional or psychological injury?
5. Did the accident of June 29, 2006 cause or contribute to the claimant’s current physical condition?
6. Did the accident of August 14, 2007, aggravate the injuries sustained by the claimant in the accident of June 29, 2006?
[The next section discussing the BCCA Borgfjord decision was added on 8 Feb 2017 as well as the references to Borgfjord in the paragraph after this section and elsewhere in this note.]
Desharnais, however, is not the most recent British Columbia Court of Appeal decisions setting out that that court's position on the meaning of Clements on proof of causation in personal injury actions based on negligence arising out of motor vehicle accidents. Let's look at the most recent BCCA case of which I am aware, as of writing, dealing with proof of factual causation: Borgfjord v. Boizard, 2016 BCCA 317 (CanLII) reasons released 20 July 2016. Borgfjord has been reported since late July 2016 on both the Court of Appeal's own website database and on CanLII.
The Court of Appeal wrote in Borgfjord:
 Causation is a two-step consideration. First, the plaintiff must establish the damage was caused in fact by the conduct of the defendant: Hussack v. Chilliwack School District No. 33, 2011 BCCA 258 (CanLII) at para. 54. The test for factual causation was restated by the Supreme Court in Ediger:
 This Court recently summarized the legal test for causation in Clements v. Clements, 2012 SCC 32 (CanLII),  2 S.C.R. 181. Causation is assessed using the “but for” test (Clements, at paras. 8 and 13; Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII),  1 S.C.R. 333, at paras. 21-22). That is, the plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred (Clements, at para. 8). “Inherent in the phrase ‘but for’ is the requirement that the defendant’s negligence was necessary to bring about the injury — in other words that the injury would not have occurred without the defendant’s negligence” (para. 8 (emphasis deleted)).
 Scientific proof of causation is not required; common sense inferences from the facts may suffice: Clements (Litigation Guardian of) v. Clements, 2012 SCC 32 (CanLII) at paras. 38, 46. However, inferences must be based on proven facts and cannot be simply guesswork or conjecture: Kerr (Litigation Guardian of) v. Creighton, 2008 BCCA 75 (CanLII) at paras. 58‑62; Haase v. Pedro (1970), 1970 CanLII 205 (BC CA), 21 B.C.L.R. (2d) 273 (C.A.) at 279‑80, 305.
 Second, the plaintiff must establish causation in law. This has been described as proving the defendant was a proximate cause of the loss, the damage was not too remote from the factual cause, or the damage suffered was reasonably foreseeable: Hussack at para. 54. Overall the inquiry asks whether the harm is too unrelated to the wrongful conduct to hold the defendant fairly liable: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (CanLII) at paras. 11 and 12.
We should be able to agree that the Borgfjord version should be understood as the current, correct, statement of British Columbia law on the on the issues covered in the quoted a paragraphs.
Desharnais was not mentioned in Borgsfjord.
In Borgfjord the plaintiff had succeeded at trial. The action was dismissed on appeal. Leave to appeal has been sought from the SCC: SCC case 37210. The decision the the leave application is scheduled for release on 9 Feb 2017. SCC news release: 2 Feb 2017; Borgfjord case 37210.
[End of addition]
Apart from the issue of whether any of the three versions are either right or wrong in light of Clements, they are obviously different from the Ontario wording and all wrong if Surujdeo is right that Clements requires a particular form of wording being the wording chosen in Surujdeo. Or Surujdeo is wrong if any of the Desharnais versions are right. Or Desharnais has, in effect, been overruled by Borgsfjord if Borgsfjord should be understood to agree with Surujdeo. Or maybe there's room for both Surujdeo and Desharnais to be correct on the question of whether their language is consistent with the applicable law (even if the Desharnais panel somehow forgot to refer to the current law: assuming Borgsfjord does not effectively overrule Desharnais ) which leaves the questions: (a) if all forms are correct, is there a better form; and (b) if there is no better form the constitutional question: is consistency across the provinces required on a matter of common law which is within the exclusive jurisdiction of a province under The Constitution Act, 1867, s. 92(13)?13
Or the there's a white rabbit dressed in frock coat and top hat about to jump down that rabbit hole. Again. When, this time, I'm not safe in Canada but sitting in Oxford.
As it happens, this part of the CIVJI was revised in 2014 supposedly to bring it up to date in conjunction with the creation of the online version of the CIVJI.l4 That necessarily means we should assume that the CIVJI complies with Clements because, after all, Clements is binding in British Columbia and we should assume that the people involved in the CIVJI updating process know that, right? As mentioned, the CIVJI is now online, too, which makes it even easier for members of the legal profession to keep up to date. The announcement that the CIVJI would be online (made in 2014) states, in part:15
CIVJI is the only comprehensive set of civil jury instructions in Canada. The main part of CIVJI consists of approximately 100 standard instructions covering civil jury trial procedure, evidentiary matters, torts, defences, and damages. The instructions are comprehensively researched and heavily annotated.
CRIMJI is used across Canada by the judiciary and the criminal Bar. It features over 150 instructions on trial procedures, evidence, and all major offences and defences, with extensive annotations, and user notes and checklists.
The instructions and summaries of law in both publications are invaluable references for judges and lawyers in both jury and non-jury trials.
The new online versions include convenient access with search capability, links to the full text of cases and legislation, and downloadable instructions. Each subscriber to a print manual automatically obtains access to the online version. Practitioners may instead choose to subscribe to an Online Only version.
Well ... regardless of what we assume about the state of knowledge of those responsible for the content of the CIVJI, we don't have to make any assumption about the actual content of the CIVJI. All we have to do is look.
Guess what. It's a good thing we didn't make any assumptions about the current content of the CIVJI on this issue because, had we have assumed that the CIVJI complied with Clements, we'd have been wrong. Or, at least, we'd have been wrong if we assumed that the CIVJI complied with my view, but more significantly the Ontario Court of Appeal's view, on the correct understanding of Clements. I suppose we should assume that the CIVJI complies with the authors view of the meaning of Clements on the issues which we should also understand to be the view of the members of the British Columbia Court of Appeal the authors consulted since, I suggest, it makes perfect sense to assume the authors excercised their ability to consult some of their judicial colleagues. (Their offices are not that far apart in the Vancouver court house on Smythe St.)
In any event, this is the current CIVJI instruction as set out in a release dated February 2016, thus before Borgsfjord. The suggested form for the causation question in actions in negligence for damages as a result of personal injury is:
1. Was there negligence on the part of the defendant that caused or contributed to the damage suffered by the plaintiff.
2. If the answer to Question 1 is Yes, was there negligence on the part of the plaintiff that caused or contributed to the occurrence.16
I'm not going to begin to get into the issue of why the CIVJI switched from negligence which caused injury in the first question to negligence which caused the occurrence in the second. I have a life, now. I am sure you do, too. There could be a rationale explanation. It's just not apparent on the form or explained elsewhere in the CIVJI. In addition, the CIVJI uses the "caused or contributed" wording whenever it proposes a causation question in the form of: "was there negligence .... which caused ....".
Of course, as this is just an appendix - that is, the form appears in what is just an Appendix and, as some of you know, in humans an appendix is currently understood to be something nobody needs and frequently has to be removed because it becomes diseased - you might conclude that the explanation and justification for this form of wording appears in the body of CIVJI. Remarkably, you would be wrong. That is, you will find an explanation for the form but not an explanation for why the form is inconsistent with Clements; not even an indication that the people responsible for that portion of CIVJI understand that the form and the explanation for the form are not consistent with Clements.
I could, of course, offer my standard explanation for this type of occurrence in British Columbia law: a shrug (not quite as good as Pierre Elliott Trudeau's was) and a "Manny is being Manny" reference.17 Actually, I just have.
What you'll see, instead, is this, in the related portion of the CIVJI that contains the suggested text for the charge to the jury:18
CAUSATION - "BUT FOR" TEST [§5.0 I .9]
User Note: Use paragraph 9 where causality can be proven on an
application of the "but for" test. In an exceptional case where (1) it is
impossible to prove that the defendant's negligence caused the plaintiff's
injury using the "but for" test, due to factors outside the plaintiff's
control, and (2) the preconditions for the application of the "material
contribution" test are met, use paragraphs 9 and 9A at §5.01.9A.
9. The fourth element I mentioned to you is causation.
For [THE DEFENDANT] to be liable in damages to [THE PLAINTIFF], it is necessary for [THE PLAINTIFF] to prove that [THE DEFENDANT'S] conduct caused [THE PLAINTIFF'S] injuries? The test you should apply is called the "but for" test: "but for'' [THE DEFENDANT'S] conduct, would [THE PLAINTIFF] have been injured?[fn 9a] if the answer is yes, [THE PLAINTIFF] would have been injured
anyway, then [THE DEFENDANT'S] conduct did not cause [THE
PLAINTIFF'S] injury, and the claim in negligence must be
dismissed. But if, on the evidence, [THE PLAINTIFF] would not
have suffered LOSS "but for" [THE DEFENDANT'S] conduct, then
you must find that [THE DEFENDANT] caused the damages and is
liable for them. You do not need to be satisfied that there was
causation on the basis of scientific precision or proof. Science
might not have an answer. Causation is essentially a
practical question of fact that can best be answered by ordinary
common sense, on a balance of probabilities.
The text of note 9a, §5.01 p. 33 is:
Another way of describing the "but for" test is that the trier of
fact ought to ask, "What harm flows from the alleged negligent
act?" See Cojocaru v. British Cololumbia Womens Hospital and
Health Centre, 2013 SCC 30 at para. 85. In Desharnais v.
Parkhurst, 2013 BCCA 113 at paras. 58 to 62, the failure of a tria
judge to use the words "but for" in instructing a jury on the "but
for" test was not fatal; the questions posed to the jury were to
the same effect.
The text of note 9 in §5.01?
It begins at p. 30 of §5.01 with a quotation from ... wait for it ... not Clements, not Ediger, not Athey, not even Snell. What's left? If you didn't guess Resurfice Corp. v. Hanke,  1 SCR 333, 2007 SCC 7 give yourself a 10 minute professional misconduct penalty. The CIVJI quotes the infamous everywhere - ok, famous everywhere in Canada; "in" meaning "not" famous anywhere else - paras. 20-23, which I will set out, here, if only because the full text of Carroll's "Jabberwocky" - "’Twas brillig, and the slithy toves ... " etc. is too long and John Lennon's almost as famous "goo goo g'joob" from "I Am The Walrus" is too short:19
 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. It suffices at this juncture to simply assert the general principles that emerge from the cases.
 First, the basic test for determining causation remains the “but for” test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statute.
 This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati, at para. 14, per Major J., “[t]he general, but not conclusive, test for causation is the ‘but for’ test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant”. Similarly, as I noted in Blackwater v. Plint, at para. 78, “[t]he rules of causation consider generally whether ‘but for’ the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities.”
 The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and the defendant’s conduct” is present. It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327, per Sopinka J.
The CIVJI text then goes on to discuss the meaning of the but-for test, and British Columbia cases (what? you expected something else?), until p. 33 where note 9 ends and 9a starts; with nary a mention of Clements.
We don't see Clements until CivJIi c. 5, s. 5, p. 34 where the text refers to note 9a and then sets out the text of para. 46 of Clements
 The foregoing discussion leads me to the following conclusions as to the present state of the law in Canada:
(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.
(2) Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.
in the context of a discussion of the meaning of the version of the "material contribution to risk" test established in Clements.
However, just in case you suspected, I will mention that Desharnais was not the last useful word - useful for this note - from the British Columbia Court of Appeal on the issue of proof of factual causation in negligence actions prior to February, 2016. That occurred in a decision released in July 2014: Agar v. Weber, 2014 BCCA 297 (CanLII). The Agar panel set out the text of paragraphs - of Clements; not any form of a cause or contributed explanation.
The judicial panels in Agar and Desharnais are different. Desharnais is not mentioned in Agar. I wrote "useful word" because there are at least 2 more (and might be more) British Columbia Court of Appeal cases after Agar mentioning Clements in a causation context; however, those references do not touch on the issue I am discussing.
Inasmuch as this section of the CIVJI is at least Ivory Snow clear, if not transparently clear, (it is, isn't it?) on the proper content of the question on causation, in terms of the leading Supreme Court of Canada case (law), I don't have to say anything more, do I? Well, no. I do.
As you've seen from what I've quoted, and what I've told you, the CIVJI doesn't discuss Clements in the context of the meaning of but-for. What the text does is merely quote para. 46(1) in the course of a different discussion. The result is that there's literally nothing there that says explicitly what the content of the question should be. It's left for the appendix. We've seen where that left us. (Needing Dr. House or, perhaps, Dr. Freud.)
On the other hand, I hope we are able to agree that Gallic and Hispanic insouciance, even references to Lewis Carroll and Dr. Seuss, aren't adequate answers for, nor adequate explanations of, the British Columbia situation. Again, if this wasn't a matter of law and of some importance even in British Columbia, I might suggest an organic explanation.
But I won't.
So, let's go back to Clements and the Ontario Court of Appeal's claim in Surujdeo that Clements directs us on the proper content of the causation question.
Let's ask ourselves this question. What if Clements didn’t say what the Ontario Court of Appeal now claims Clements said but Clements should be understood as not requiring the wording of the question in the form asserted in Surujdeo; rather, Clements should be understood to have affirmed the very wording the Surujdeo trial judge used because, as we've seen, the trial judge’s formulation is the meaning of the “but-for” test. That is, what if the jury asked the judge: “what does but-for mean in law”?
If the issue was how many players is each NHL team supposed to have on the ice at the start of the game, for the opening face off, absent a penalty in the warmup, would it matter if you said 6 or if you said a half dozen?
Part of the "what" is, of course, that the Ontario Court of Appeal has established, for practical purposes, what the law is for Ontario on the meaning of Clements, regardless of what a better interpretation is of Clements. So, for Ontario, the issue is settled until the Ontario Court of Appeal overrules itself (even if in result if not in word), the Supreme Court of Canada deals with the issue, or the Ontario legislature enacts legislation that in fact deals with the problem or an Ontario court or the Supreme Court of Canada concludes does deal with the problem, in effect if not in text: that is, implicitly not explicitly. (It is, apparently, good law in Ontario - at least unit the Supreme Court of Canada says otherwise - that legislation, through silence, can create rights; that is, from nothing may come something: see Waterloo Region District School Board v Truax Engineering Ltd., 2010 ONCA 838.)
Let’s, then, look at the relevant parts of Clements. Again, keep in mind that Clements did not involve a jury trial. Nowhere in Clements is there any instruction on what the questions on causation to a jury should be in the context of the charge to the jury. So, what one has to decide is what we should understand Clements to tell us the words of the question should be. That is what the trial judge in the 2015 Ontario decision had to mean. At least, that’s what I’d claim she had to mean since she was once one my partners in a law firm in Toronto, even if that was before Clements. So, from Clements we have the paragraphs that should have been quoted in CIVJI, not the Resurfice paragraphs in the discussion of the meaning of but-for:
 The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence. …
 In some cases, an injury — the loss for which the plaintiff claims compensation — may flow from a number of different negligent acts committed by different actors, each of which is a necessary or “but for” cause of the injury. …
(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant.
Do you see anything there that rules out, say “a cause of” so long as the judge explains that “a cause of” means “necessary for? I don't, but then some might say I'm prejudiced.
I hope we should be able to agree that Clements rules out the use of the "or contributed" part of the old "caused or contributed" phrase for at least these reasons: (1) at first glance and when you dig deeper, "contributed" does not seem to entail "necessity"; that is, doesn't necessarily mean "necessary" or "necessity" and that ambiguity is a problem; (2) since Clements requires us to agree that the but-for test means "necessary", any meaning for "or contributed" other than "necessary", in this context, is wrong in law; (3) since "caused" means "necessarily caused" - "Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury" (Clements, para. ) - then "or contributed " is redundant to - to be redundant, it adds nothing to - the meaning of "caused"; (4) while (1-3) should be enough, Clements uses the concept of "contribution" for a different, not factual cause, meaning for causation,20 so it is better that we avoid the possible confusion of the same word, or forms of word, being used for different concepts; (5) while (1-4) should be enough, examples show that "caused" and "contributed to" don't entail the same conclusion, in addition to the fact that Clements establishes that the terms necessarily could have different meanings.
I could probably run the list up through at least 11 but that would be overdoing things, at least here.
Imagine, for example, that Jabba the Hutt, having woken from his aeons-long hibernation - it turns out ze wasn't actually killed in a sense the ordinary, modern, human being in this era and this part of the universe would understand him to have been killed - and wanting to catch up on old times, decides to visit Earth to see whether any of Princess Leia's descendants are alive and interested in rejoining his crew. However, ze astutely realizes that he is a bit obese, even by current North American standards, and a bit ugly, too, so he decides he will pretend to be a very large, very observant, Muslim woman who has chosen to wear the burqa with full veil over the eye-slit whilst visiting Earth. Eventually, Jabba finds zeself in Vancouver, British Columbia, and after discreet inquiries, finds out about certain notorious areas of Wreck Beach where it is possible to work on one's complete tan, if you get my drift.
Thus informed and emboldened, Jabba flits to a private corner of Wreck Beach, on a beautiful, warm July day and, away from prying human eyes but unknowingly under the watchful gaze of a few curious Orcas who wonder if they're about to have the opportunity for a large meal of some high end cuisine, particularly since Jabba has taken to humming the Lennon & McCartney's "I Am the Walrus". Orcas having good hearing and, it seems, many blame Paul for the breakup of the Beatles. Who'd have guessed it? Much to the Orcas' disgust, however, Jabba takes off the burqa and, since he is wearing nothing underneath it, stands exposed to the sun, and the Orca's gaze, in the full glory of zes Huttness. Or something like that. The Orcas swim away muttering to themselves about obese orange Cheetohs and the effects of performance enhancing drugs on NFL offensive lineman, leaving Jabba alone on the beach to work on his tan while inconveniencing and offending the family of sand crabs he just missed sitting on.
That sets up our question.
Let's agree, for the purpose of this question, that Jabba, without a burqa on and without anything else on zes body that covers that body, is naked. So, when Jabba took off the burqa, did the act of taking of the burqa (1) cause Jabba's nakedness in the sense that but for taking of the burqa, Jabba would not have been naked or (2) merely contribute to Jabba's nakedness, in the sense that but-for the fact that Jabba was already naked under the burqa, taking off the burqa would not have left Jabba naked. That is, for the act of taking off the burqa to make Jabba naked, Jabba had to already be naked under the burqa so the act, on Wreck Beach, did no more than contribute to Jabba's nakedness. It did not cause his nakedness because it was not sufficient by itself. Jabba had to have been already naked under the burqa.
Anybody want that rabbit hole? Don't blame me for this. It's what you necessarily get from the "or contributed" appendix.
In any event, let's leave Jabba to the sun and the crabs and get back to real concerns.
Let’s go a bit farther back into our current past, to a Supreme Court of Canada decision that underlies Clements: Athey v. Leonati,  3 SCR 458, 1996 CanLII 183. Athey wasn’t mentioned in Surujdeo but was, of course, in Clements. For example: “Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss. See Snell [Snell v. Farrell,  2 S.C.R. 311, 1990 CanLII 70] and Athey v. Leonati,  3 S.C.R. 458.” (Clements, para. 10)
So what, then, does Athey tell us that is relevant to the form of the jury question on factual causation in civil cases? Athey, you will recall, tell us something about a number of issues, one of which is the meaning of the but-for test as that meaning was then to be understood in Canada.
 Causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused .. the injury ...
 The general, but not conclusive, test for causation is the “but for” test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant ...
 It is not now necessary, nor has it ever been, for the plaintiff to establish that the defendant’s negligence was the sole cause of the injury. … As long as a defendant is part of the cause of an injury, the defendant is liable, even though his act alone was not enough to create the injury. There is no basis for a reduction of liability because of the existence of other preconditions …
[Emphasis in original.]
 The law does not excuse a defendant from liability merely because other causal factors for which he is not responsible also helped produce the harm … It is sufficient if the defendant’s negligence was a cause of the harm: ...
[41.2] If it was necessary to have both the accidents and the pre-existing back condition for the herniation to occur, then causation is proven, since the herniation would not have occurred but for the accidents. Even if the accidents played a minor role, the defendant would be fully liable because the accidents were still a necessary contributing cause.
Athey does not explicitly or implicitly contain any directions on the form of the jury question on factual causation beyond the implications of the content of the applicable law. However, does everybody see what I saw in : ”It is sufficient if the defendant’s negligence was a cause of the harm:” (As Jon Stewart might say: "Just seeing".)
Can we agree that content is supposed to define form? (Marshall McLuhan probably said something about this, once but we don't have to go there, here.)
Now let’s go back to what the trial judge actually wrote in Sacks v Ross, 2015 ONSC 7238 (the Ontario case I suggested you should look up yourself, earlier):
 The relationship between the ‘but for’ test described Clements and jury instructions was addressed by the Ontario Court of Appeal in Goodwin v. Olupona, 2013 ONCA 259 (CanLII). Epstein J.A. stated the following, at paras. 84-85:
“The proper test for causation, set out in Clements, at para. 8, is the “but for” test: ‘The plaintiff must show on a balance of probabilities that ‘but for’ the defendant’s negligent act, the injury would not have occurred.’ It is clear that the trial judge was well aware of the test and properly instructed the jury on it. In his charge the trial judge explicitly set out and repeatedly reminded the jury of the “but for” test. ..This type of wording was used every time the trial judge instructed the jury with respect to its consideration of whether a causal connection had been made out in relation to each defendant. This wording was also incorporated into the questions the jury was required to answer…”
 In my view, using the words “caused or contributed” is not the best way to phrase the causation questions. To use the words “caused or contributed to the injury” could be the source of confusion or misunderstanding for the jury. The fact that such language is reflected in the Negligence Act does not mean it ought to be employed in the jury questions; Causation is a factual determination for the jury, taking into account all of the evidence. I will instruct the jury on the law as it relates to causation and will use the “but for” test. I see no advantage to departing from the legal test as articulated by the Supreme Court of Canada when asking the jury to answer the questions on causation.
 The questions on causation will read as follows: If your answer to question 1(a) is YES, have the Plaintiffs proven, an a balance of probabilities, that but for the breach of the standard of care, the injuries of Jordan Sacks would not have occurred?
As you’ve seen, the issue in Sacks v Ross was whether the old “caused or contributed” wording was still proper in light of Clements. The trial judge held that it was not.
The issue in Sacks wasn’t whether a formula such as that suggested by the trial judge in Surujdeo - the "a cause of" formula - could also be a correct summary of the meaning of Clements. But, as you’ve seen, the trial judge in Sacks relied on the Ontario Court of Appeal's decision in Goodwin v. Olupona, 2013 ONCA 259 for her conclusion. Goodwin also refers to the questions to the jury, but the text of the questions in Goodwin doesn’t appear in Sacks.
So back we go to the report of the Goodwin reasons. Are you be surprised to be told that that the form of the question about causation isn’t literally (or even in paraphrase) set out in the text of the reasons? The Goodwin panel (different from the Surudjeo panel) wrote:
 The proper test for causation, set out in Clements, at para. 8, is the “but for” test: “The plaintiff must show on a balance of probabilities that ‘but for’ the defendant’s negligent act, the injury would not have occurred.” It is clear that the trial judge was well aware of the test and properly instructed the jury on it. In his charge the trial judge explicitly set out and repeatedly reminded the jury of the “but for” test. For example, the trial judge stated:
The law requires that if the physician did not perform medical services within the standard of care for an obstetrician, it must be proven on a balance of probabilities that the injuries to Adam Goodwin would not have occurred but for the action or lack of actions by Doctor Olupona… [Emphasis added.]
 This type of wording was used every time the trial judge instructed the jury with respect to its consideration of whether a causal connection had been made out in relation to each defendant. This wording was also incorporated into the questions the jury was required to answer. Furthermore, when giving his instruction on the principle of proximate cause, the trial judge clearly used language tantamount to ‘but for’: “[t]he proximate cause of an injury is that cause which produces the injury, and without which the result would not have happened” (emphasis added).”
So, while we don’t know what the literal wording of the causation question was in Goodwin, it seems reasonable to conclude that the wording somehow did not literally incorporate some version of “would not have occurred but for”.
Why is this conclusion as to the literal wording of the causation question in Goodwin reasonable? One reason is that otherwise I would not have had to write this article but for all of the reasons I have set out above. That, however, won't tell you whether there are other better reasons.(Those of you who are very sharp of vision and hearing might envisage an audience far in the background and that some of the audience are making the European “evil eye" gesture while muttering something that sounds like “black swan, black swan”.)
Also, if the wording the Ontario Court of Appeal asserts, in Surudjeo, is the correct wording was the wording used in Goodwin, isn't it logical, correct, likely, probable, certain, etc., that the panel in Surudjeo would have quoted from Goodwin and applied Goodwin, not adopted at trial decision saying how Goodwin should be understood. ("Just sayin", per Jon Stewart.) Occam's Razor here, folks. Maybe even an example of ordinary, Ontario, even Canadian, commonsense.
As Master Funduk of the Alberta Queens Bench blithely noted, one day, once upon a time in the last millennium, in South Side Woodwork v. R.C. Contracting, 1989 CanLII 3384 (AB QB):
 Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder.
 I am bound by decisions of Queen’s Bench judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada. Very simply, Masters in Chambers of a superior trial court occupy the bottom rung of the superior courts judicial ladder.
 I do not overrule decisions of a judge of this court. The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.
"Peckerhood", then, would require the ONCA to have followed or distinguished one of its own decisions if that decision dealt with the issue, not simply adopt a decision of a judge lower in Ontario pecking order. That, too, suggests we should conclude that Goodwin is silent on the issue, whether explicitly or implicitly, right?
So, if the investigation had to stop there, what conclusion would you draw about the form of the question(s) in Goodwin? Say, for example, from the silence of the lambs, I mean, judges in Surudjeo on what one might find in Goodwin? Would it be that the text of Goodwin's questions might not support the Surudjeo’s view of the proper wording?
That would be another big OOOPS, wouldn't it?
Fortunately, I know who to ask for the question(s), so I did. It/They was/are:
[text of question(s) to be inserted once I get the answer]
We don’t know if the Surudjeo panel got this information from, say, the Goodwin file or some means equivalent to mine: sending an email to somebody who’d know and asking. Or even by asking an assistant to get it from an appropriate source.
In the meantime, though, we can look for previous reported decisions contained in online databases because such decisions are relatively easy to find. I confined myself to CanLII because I am making a point, not writing an exhaustive analysis of the issue of the proper form of the jury question on factual causation in actions in negligence in common law Canada. Use this search string - (damage* OR injur*) "jury question" /50 caus* - in your search. Then limit the results to appellate decisions if you want to reduce the number of cases you might look at. You can skip the "R v " results which this search pulls up. I'll tell you this much. You won't necessarily get the result now required in Ontario by Surudjeo. You will get but-for versions, a cause versions, caused or contributed versions, resulted in versions, and versions that are probably slightly different versions of the versions I've mentioned. Most of these cases don't involve any issue as to the correctness of the form or content of the causation question.
Now, it’s been at least a decade, even more, since I last spoke to the trial judge in Surudjeo. He’s an old-timer like me. He comes from the era where Athey was taken to mean exactly what its words seem to mean in plain, commonsense English; not what Clements now says Athey should have always been understood to mean even though that is (1) clearly not what the Athey text literally means and seemed to mean on any reasonable reading of the words used and (2) not what the Supreme Court allowed the profession to believe Athey meant between the release of the Athey reasons in 1996 and the release of the Clements reasons in 2012 (even to the extent of the Supreme Court stating, in 2001 (in Walker Estate), that Athey meant what it literally seems to mean.
So, where does that get us? It is, I suggest, that in current Canadian negligence law, when discussing the meaning of the but-for test, “a cause” must be understood to mean "a necessary cause” as “a necessary cause” is the meaning of “but for”.
So, what was the Surudjeo trial judge’s error? He got the law right. He even used the right words; just not the words that the Ontario Court of Appeal now says he should have used, even though what he said is the meaning of the words that that court said Ontario trial judges are to use when explaining what the law is to themselves. Words that, if a jury asks, what does “but for” mean, the judge will be entitled to use.
The rabbit hole is over there. It hasn't moved.
Now, if all the Ontario Court of Appeal had said was: “we want certainty; there was nothing wrong with the trial judge’s formulation; it was clear, enough; however, henceforth trial judges are to use ______ because _____, then they’d not have to have heard from me on this issue and I wouldn’t have felt compelled to break a New Year’s resolution so soon in the year.
The other problem - that the common law in Ontario and British Columbia, at least, is seemingly different; which province's law is correct; whether it's constitutionally permissible to have different conclusions on the meaning of Clements in different provinces since there's only one Supreme Court of Canada and one Clements; not the white rabbit issue; involves a separate resolution to break at some other time. Not today. And maybe not by me since, as you know, INLAALPIC.21 Also, for what it's worth, I no longer care ... enough. Now.
Will that change? Never say never. After all, if the Judicial Committee of the House of Lords, in its the flower of its power, could agree unanimously, a mere 11 years ago that22
 ... Rigidity in the operation of a legal system is a sign of weakness, not strength. It deprives a legal system of necessary elasticity. Far from achieving a constitutionally exemplary result, it can produce a legal system unable to function effectively in changing times. 'Never say never' is a wise judicial precept, in the interest of all citizens of the country.
then who am I to disagree?
1. The sport formerly known as "43-Man Squamish" after the famous Moose Jaw Summit of 2025 resulted in the IIHF relinquishing control of the international WSQs (World Squamish Championships) and the official mergers on the field and off of the men's and women's competitions. And the resulting increase in roster size for seemingly unrelated reasons. As to the history of 43-Man Squamish, see: http://madcoversite.com/quiz_olympics.html; https://en.wikipedia.org/wiki/Tom_Koch; http://boingboing.net/2010/02/17/45-years-of-43-man-s.html; http://research.omicsgroup.org/index.php/43-Man_Squamish. Apparently roster size was increased by 8 in total 4 (per team) to accommodate players able to sustain cognitive dissonance while in quantum superposition states (see: http://www.physics.org/article-questions.asp?id=124) and the request a number of Donald Trump multiple personalities to each occupy an appropriate position on both the American men's and women's teams. The decision to increase the number by a total of 8 was a compromise between the position of the Surrealists who wanted unlimited roster sizes noting that persons in superpositions could be anywhere and 8, looked at sideways, was the infinity symbol and the Canadians who threatened to take back the "Squamish" name (Squamish being the name of a city in British Columbia Canada) unless the increase was limited to 18 in total; 18 representing the numerical value of Hebrew word for life "Chai". However, a squabble between the English and French representatives of the Canadian delegation, at the Canadian Beaver Club the night before the meeting, supposedly over the abysmal quality of the maple syrup poutine, resulted in both representatives being poked in the eye and being unable to see properly the next day (so they claimed). In any event, they did not catch the typing error in the amendment paperwork. When the mistake was discovered, later, the Canadian delegations, after retiring for a conference in their fishing hut with a few 2-4s of brewskis, declared they were happy with 8 because it was the numerical value of the Hebrew equivalent of the letter C.
2. See http://www.keatsian.co.uk/negative-capability.php: "... when man is capable of being in uncertainties. Mysteries, doubts, without any irritable reaching after fact and reason."
3. See: https://en.wikipedia.org/wiki/Cognitive_dissonance: "In psychology, cognitive dissonance is the mental stress (discomfort) experienced by a person who simultaneously holds two or more contradictory beliefs, ideas, or values, when performing an action that contradicts those beliefs, ideas, and values; or when confronted with new information that contradicts existing beliefs, ideas, and values."
4. See, e.g., the directions in Clements v. Clements,  2 SCR 181, 2012 SCC 32 at paras. 17-28 as to how the discussions of "material contribution in Athey and Walker Estate are to now be understood. See also https://en.wikipedia.org/wiki/Retroactive_continuity (retroactive continuity) and https://en.wikipedia.org/wiki/Historical_negationism (historical revisionism as historical denialism)
5. Don't blame me. I don't create the inconsistencies in the case law. .
6. So that the deserving innocent victim (i.e., plaintiff) of a defendant's heinous conduct will be awarded the amount required to allow the plaintiff's lawyer to take enough as the lawyer's fees to pay off the mortgages on the chateaus in Davos, St. Moritz, Whistler, Banff and Mammoth)
7. Since this is the "once upon a time" I'm not going to list cases but they're easily found in common law Canadian jurisdictions if one properly search the online data bases of reported decisions.
8. Surujdeo v. Melady, 2017 ONCA 41 at - (Trial judge "erred in law by approving jury questions that did not reflect the applicable 'but for' causation test"; no miscarriage of justice because law adequately explained in charge.)
9. Surujdeo v. Melady, at -.
10. Surujdeo v. Melady and Desharnais v. Parkhurst and Romanowski, 2013 BCCA 113.
11. See https://en.wikipedia.org/wiki/Self-Reliance.
12. None of the other jurisdictions in Canada which allow trial by jury in civil actions have an equivalent, public "for use by the lawyers, judges, and members of the public" publication for civil jury trial similar, in any sense, to BC's CIVJI. You should not understand from that that the judges of the other jurisdictions do not need something similar. You should assume - in fact, you can assume, without making an "ass" of either you or me (us) that the other jurisdictions have "in-house" instruction manuals for their judges with contents similar to what is in the CIVJI. I don't officially, formally, know this, of course.
13. 30 & 31 Vict, c 3, s. 92(13) "Property and Civil Rights in the Province".
15. see 14.
16. See Appendix C to the CIVJI, Sample Form 1, p. c-3.
18. CIVJI, c, 5, §5.XXxXXX
19. Resurfice Corp. v. Hanke,  1 SCR 333, 2007 SCC 7
20. Clements at para. 14: '“But for” causation and liability on the basis of material contribution to risk are two different beasts. “But for” causation is a factual inquiry into what likely happened. The material contribution to risk test removes the requirement of “but for” causation and substitutes proof of material contribution to risk.'
21. I No Longer Am A Lawyer Practising In Canada
22. National Westminster Bank plc v. Spectrum Plus Limited & Ors,  UKHL 41 at [41[ per Lord Nichols of Birkenhead with whom all the remainder of the panel agreed on this point.