University of Alberta Faculty of Law Blog

Factual Causation, Parsimony, and the Lord of the Tests

One Test to rule them all, One Test to find them,
One Test to bring them together, and in the light of doctrine bind them.

(apologies to Tolkien, Lord of The Rings)

Law needs to describe itself as a science, ultimately based on empirically verifiable principles, in order to avoid being nothing more than another form of theology, ultimately based on faith. Faith, by definition, does not require empirical verification. Similarly, Law's principles and rules need to avoid amouting to a form of magic that is fantasy, not merely an instance of knowledge beyond our current understanding. Magic, too, does not need verifiability. It simply is.

Physics has its search for the TOE (Theory of Everything). Canadian tort doctrine, in the area of factual causation, at least as expounded by current Supreme Court of Canada doctrine, apparently has its own TOE, its own one "One Test": the but-for test.

Unfortunately for the SCC, the but-for test when properly understood is not a TOE at all. It is not a theory that explains everything.While it is, in practice, a default test; nonetheless, even as a default test, it is not the all-powerful master test in the sense of the One Ring in Tolkien's Lord of the Rings.*   (The LoTR has been endlessly parodied. Two of the best are the Harvard Lampoon's  Bored of the Rings - easy enough to find online - and the Jack Black, Sarah Michelle Geller, and others parody of a seminal scene.) Nor, is it even even a positional equivalent of Asimov's Zeroeth Law of Robotics. 

(edited June 23, 25)

Live by the sword

Salter v. Hirst  2010 ONSC 3440 is the rare example, in Canada, of what in the U.S. is called a judgment N.O.V. (judgment non obstante veredicto) - a judgment by the judge in favour of one of the litigants notwithstanding the jury's findings of fact which, on their face, satisfy the requrirements for a verdict in favour of the other litigant.

In Salter, the jury found in favour of the plaintiff on all the issues [of fact] required for judgment liability against a defendant. The plaintiff moved for judgment in accordance with the findings of the jury. The defendant moved to have the action dismissed on the basis that one of the findings was perverse and not supported by any evidence. The defendant succeeded. The plaintiff failed. The rial judge held that there was no evidence whatsoever upon which the jury could have made the finding it did. The action was dismissed.

The case is also a reminder of the potential consequences of not having the necessary evidence, and not asking the necessary questions, even if one has a sympathetic plaintiff, a tragic injury, and a jury.

The case is also a reminder of the fact that there are some issues which require expert evidence: areas where lawyers won't be permitted to appeal to the jury members "common sense" as a basis upon which the jury can draw inferences about facts for which there was no positive evidence.

Professor Brown's "The Possibility of "Inference Causation": Inferring Cause-in-Fact and the Nature of Legal Fact-Finding" (2010) 55 McGill L.J. 1 is a prescient article on the issue that tripped the plaintiff. There's a link to a version of the article here. (In fact, the entire volume of the McGill LJ is on that site, just a bit of surprise  because the articles aren't available on the jounal's site, itself. It's not quite the version that's in the MLJ, at least in format, since the online version has endnotes not footnotes. I didn't check content.)

In the US, in civil cases, the practice is to ask the jury detailed questions. In Canada, the practice is to ask the jury general questions. Most litigators (in my experience) assume that generality favours the plaintiff, particularly given the narrow grounds for attacking appealing a jury verdict: essentially, no evidence upon which a jury acting reasonably could make the decision it did. This is one case where that generality may have backfired on the plaintiff.

DC

Blame Peter?

or be careful what you wish for, just in case you get it.

Once upon a time Ontario had legislation which, as statutes are wont to do, contained some provisions; that is, sections (clauses) declaring something that was supposed to be law.

One of the sections declared (provided) something that was probably required for the better working of the area of law to which it applied. It also seemed to declare (provide) something else - lets call that Principle C - that was not necessary, in the sense that Principle C already and necessarily existed as a matter of the common law of that area of law. However, not surprisingly, the Ontario courts acted is if (indeed some even said) that Principle C was a creation of that section of the statute. None of the decisions bothered to consider whether the section did nothing more than declare existing law because it didn't matter to the end result. The result was what mattered.

Roll Them Bones

Consider a reductio.

F.H. v. McDougall, 2008 SCC 53 at para. 46, [2008] 3 S.C.R. 41.

"Similarly, evidence must always be sufficiently clear, convincing and cogent to satisfy the balance of probabilities test.  But again, there is no objective standard to measure sufficiency.  In serious cases, like the present, judges may be faced with evidence of events that are alleged to have occurred many years before, where there is little other evidence than that of the plaintiff and defendant.  As difficult as the task may be, the judge must make a decision.  If a responsible judge finds for the plaintiff, it must be accepted that the evidence was sufficiently clear, convincing and cogent to that judge that the plaintiff satisfied the balance of probabilities test."

(emphasis added). We will leave the circularity and tautology(?) for another day.

The Wrong Song - Judges Can't Do That

Judges, by virtue of their status as judges and role in the legal system, have to watch what they say, how they say it, and where they say it, far more than many others. For example, the nature of the position puts some constraints on the judge's ability to express views on political issues, and the the propriety - in the sense of desirability, not merely legality - of laws passed by the bodies having the constitutional power to pass such laws.

Once upon a long enough time ago - in people years -  John & Paul wrote and sang, together with George, and performed together with Ringo,  a song titled "You Can't Do That" which included the lyrics "because I told you before, you can't do that".

Slow Justice

I know the wheels of justice are slow, but who knew justice in Italy was this slow. The case has taken over 10 years to hear and decide, and now apparently the appeal may take another 10 years. The litigant is 102 years old.

Class Actions bad?

Is our legislation concerning class actions worse than what the Americans have? These authors think so.

Failure to Google=Negligence?

Plaintiff attempts to serve defendant with papers, but plaintiff claims he couldn't find the defendant, because mailing the complaint to the last known addresses all resulted  in returned mail- what result? If a simple Google search yields a different address than the addresses used for the mailing, chances are the courts are not going to be too impressed, and will probably dismiss the complaint for lack of effective service. See Munster v. Groce, 829 N.E.2d 52 (Ind. App. 2005).  The court noted that they Googled the defendant's name and found another address including a mention in an obituary of a death in the family.

What does this mean for lawyers? It means that Google is now an indispensable tool and that at the very least lawyers should have more skills than Appellate judges and their clerks! What does this mean for Facebook, MySpace, and other such sites? Perhaps lawyers will all have to get Facebook accounts to track possible parties to serve them.

E-File please

The future is here - a lawyer in Kansas who kept filing bankruptcy cases the old fashioned way was finally sanctioned for failing to follow the new e-filing mandates of the bankruptcy courts.

Canada v. Lameman: Summary Judgment and Limitation Periods at the SCC

The SCC yesterday in Canada (Attorney General) v. Lameman allowed the Appeal from the decision of the Alberta Court of Appeal and restored the decision of Slatter J. (as he then was) to grant summary judgment to the defendant Crown in the claim advanced by descendents of the Papaschase Indian Band.  The decision will be significant for students of civil procedure as it is one of the rare instances where a high court seeks to give some principled guidance on procedural questions (in this case on summary judgment and on limitation periods). 

Looking over the decision, it is obvious that the plaintiffs had an insurmountable problem, which was that they knew by no later than 1974 that they had, or thought they had, a cause of action.  The SCC specifically notes that the plaintiffs had no answer (and indeed filed no material) in response to that point.  Instead, both at the SCC and at the Court of Appeal, the plaintiffs made "vague references" (says the SCC) of evidence that "might be pleaded or proved in the future." 

Given that this case was hanging on the thinnest of threads, the ultimate outcome does not exactly mark the Alberta Court of Appeal's finest moment.  In fairness to the Court of Appeal, however, it must be added that it at least had the fortitude to make the plaintiffs bear their own costs, largely because of the conduct of the appeal by their counsel.  Specifically, plaintiff's counsel was said by the Court of Appeal to have, inter alia, (1) "argued and emphasized many hopeless procedural points ... which consumed considerable time and effort";  (2) "inaccurately recited the record or the [defendant]'s argument";  (3) "handed the Court and the [defendant] a new factum at the last moment";  (4) "consumed significant time and paper with unnecessary oration".  (Emphasis added).

$4000 Minor Injury Cap

Jennifer Koshan has a good piece on ABlawg reviewing Wittman J.'s decision in Morrow v. Zhang, which struck down the cap on damages for soft tissue injuries.

(On a related note, the U of A's local chapter of the Canadian Constitution Foundation is holding a panel discussion later this month on the cap).

Brian Mulroney default judgment

I am no expert on Ontario's rules of civil procedure, but this story about a default judgment strikes me as odd. I would have thought that the case could have been dismissed on jurisidictional or forums non conveniens grounds.  So I suppose the plaintiff has to try to enforce this judgment in Quebec, and then have Mr. Mulroney collaterally attack the jurisidction of the Ontario court. I suppose he could also appeal in Ontario. Unless, I suppose the plaintiff could have argued that there was some connection to the incident in Ontario. 

What I am really interested in from the story is: are we seeing more and more forum shopping accross Canada for favorable verdicts? This is the norm in the U.S.  But Canadian lawyers I speak to tell me it is not as common here. If this does change, we may need some sort of choice of law and rules of jurisidction that apply to sort this mess out.  On the other hand, there is something to competitve federalism. Delaware is the U.S. state of incorporation for most large corporations, because it has managed to create an optimal set of rules for shareholders and managers alike.  In Canada, our rules tend to be uniform accross the country, and in fact, the push seems to be for more uniformity not less.