University of Alberta Faculty of Law Blog

Factual Causation: Here We Go ... Again?

The Supreme Court is scheduled to hear the appeal in Clements (Litigation Guardian of) v. Clements, 2011 BCCA 581, reversing 2009 BCSC 112; leave to appeal granted 2011 CanLII 36004 (SCC) on February 17, 2012. The Supreme Court’s summary of the issues in the appeal suggests that that all the Court was asked to do is clarify the meaning of the Resurfice material contribution test for proof of the causation requirements in causes of action in negligence and, then, determine the correct result in Clements based on that test. See

That is an accurate enough summary of what was in Ms. Clements (the appellant’s) leave to appeal factum. It is not an accurate summary of what is in her factum. The appellant (Ms. Clements) has explicitly asked the Court to decide if the causation issue ought to have been decided in her favour on the bases of the but-for test, in particular the “robust, pragmatic, common sense” approach mandated by Snell v. Farell [1990] 2 S.C.R. 311, 1990 CanLII 70. The parties’ factums are available on the Supreme Court’s web site. That is not a problem because the Supreme Court’s mandate, having granted leave, is to make the decision that ought to have been made by the lower court from which the appeal comes; or order a new trial if that is the proper decision (if the decision appealed from was “against the weight of the evidence); or remand the appeal or any part of the appeal to the court appealed from for additional consideration in accordance with the direction of the Court: the Supreme Court of Canada Act, R.S.C. 1985, c. S-26, ss. 44-46.1.

The Supreme Court panel in Clements could have three judges who were appointed to the Court after Resurfice was decided. It will if the panel is the full 9 member court. It will have at least 1 new judge if the panel is composed of seven judges. Justices Cromwell, Moldaver and Karakatanis are the new appointments. Justices Bastarache, Binnie and Charron have retired. Only Justice Cromwell has expressed a judicial opinion on the meaning of Resurfice in reported reasons for judgment. Only Chief Justice McLachlin and Justice LeBel J. remain from the panel that decided Walker Estate v. York Finch Hospital, [2001] 1 S.C.R. 647, 2001 SCC 23. Only McLachlin C.J. remains from the panels that decided Snell and Athey v. Leonati, [1996] 3 S.C. R. 458, 1996 CanLII 183.

A colleague’s comment about the granting of leave in Clements was “here we go”. My immediate reaction was to add “again”. I hope I am wrong.

 

Since, I'm talking to myself on this subject, as often as not where practitioners are involved, let's continue the bad(?) habit. I'm going to mention a number of points I've made elsewhere.

1. Between late 1996 and early 2007, Canadian tort jurisprudence formally had, at least based on an (ahem) "common sense", grammatical, ordinary, plain etc. etc. reading of Athey, an alternative method for establish factual causation (cause-in-fact) on the balance of probability. It was something called the Athey material contribution test.

2. The Athey material contribution test was, again on a grammatical etc. reading of Athey, applicable only where the but-for test was unworkable. That if too often seems it wasn't used that way may now be a moot point. It wasn't by the Alberta Court of Appeal in Resurfice, which is probably a good part of the reason the SCC granted leave to appeal. It also helped, I'm sure, that the ABCA claimed it was applying the SCC's own words in Walker Estate v. York Finch Hospital, in declaring that the Athey material contribution test applied, not the but-for test, but that's likely water under the bridge, at least for now.

3. Regardless of anyone's views on the vacuity of the Athey material contribution test – many academic lawyers and at least one practitioner might have gone on too long about this – it was used more than once by judges (trial and appellate) deciding tort cases across common law Canada. It found its way into the causation tests in statutory compensation regimes such as the provincial workers' compensation schemes and motor vehicle statutory accident benefit schemes, too.

4. For Ontario, a Court of Appeal decision in late 2006 (where leave to appeal was denied by the Supreme Court after the release of Resurfice, provided an explanation of the meaning of Athey's "unworkable". In Aristorenas v. Comcare Health Services, 2006 CanLII 33850 (ONCA)the majority wrote in para. 53:

Thus, it would seem that the “material contribution” test is applied to cases that involve multiple inputs that all have harmed the plaintiff. The test is invoked because of logical or structural difficulties in establishing “but for” causation, not because of practical difficulties in establishing that the negligent act was a part of the causal chain.

I suggest it is probable that the dissenting judge agreed on this point at least because the dissent was "merely" on the question of whether there was sufficient admissible evidence to support the trial judge's decision.

5. Again, at least in Ontario, Athey resulted in the Court of Appeal declaring that the Athey material contribution test was the label for the "legal principles concerning contributory causation". See Mizzi v. Hopkins 2003 CanLII 52145 (ONCA) starting at para. 26.

6. Resurfice declared the but-for test to be the "basic", "default" test. (Look it up yourself if you don't agree.)

7. The result of that, for all practical purposes – it took about a year – was that an "Ivory Snow pure" number of trial judges stopped formally using Athey material contribution to decide whether factual causation was established on the balance of probability. (I've used "seemingly", elsewhere, on occasion: feel free to substitute your own adjective. But DO NOT read my choice of adjectives to mean that I am suggesting that any judge has intentionally ignored the law binding on him or her, as he or she understood it, in order to make a decision he or she knew could not be validly made under the law as he or she understood it.)

8. Despite this, there has been no apparent difference in the actual result of reported cases. I've asked, again elsewhere (rhetorically of course) how it can be that Canada had so many instances between late 1996 and early 2007 where the but-for test was unworkable but seemingly none since. Again, this raises the not-too-rhetorical question of what changed in the laws of nature governing reality in common law Canada – at least reality as it exists outside of the National Capital Region and the boundaries of the various provincial and territorial legislatures – so that the but-for test was now almost Ivory Snow level workable?

9. Whatever factual causation actually means in the "real" world outside of the cloisters of law – take my word for it, the situation is worse than implied in either the English or French versions of para. 20 in Resurfice – it can be reasonably said that most judges and juries somehow got and get to the correct decision on what caused what. Or at least, make a decision that is defensibly correct under law's principles and at least as valid as any contrary decision. Don't forget that all law needs is whatever level of certainty "probably" means.

10. Nonetheless, even before Resurfice, even where the ultimate decision about whether the defendant's negligence was a cause of the injury seemed to be correct (or at least defensible) on the findings of fact, there was a real disconnection in too many reasons for judgment between the passages setting out the law and ultimate decision, particularly where the judges claimed the but-for test was "unworkable." By disconnect, I mean nothing more than that the judge's statements of the law do not actually explain why the judge made the decision that he or she did (in my view). As road maps, they don't get you from here to there.

11. If you want read why that might have been so, look up the meaning of "mantra" in your dictionary and look at my article whose short title is "Snark". It's published at (2005) 30 Advocates' Quarterly 1. It's long but there are subtitles. Or look at shorter version called "Tales of Sound and Fury: Factual Causation in Tort after Resurfice”, in Law Society of Upper Canada Special Lectures 2008, Personal Injury Law (Toronto: Irwin Law Book, 2009) 201. Or read Russell Brown, “Material Contribution’s Expanding Hegemony: Factual Causation after Hanke v. Resurfice Corp.” (2007), 45 Can. Bus. L.J. 432. (Yup, that Russell Brown.)

And consider this. The United States has had something called a "substantial factor" test – US tort law's equivalent to our Athey material contribution to injury test – for about 100 years. Many leading US tort scholars consider it a "vacuous incantation". In fact, enough did that the Restatement (3d) of Torts has abandoned it.

12. Amongst other reasons for that result was the realization that, in some cases, juries (and arguably even judges in non jury trials) were using a "substantial factor" analysis to find that negligence which was a but-for cause (whatever but-for means) was not a factual cause. That decision had to mean that because juries can only decide questions of fact, right?

13. Could that happen in Canada? You be the judge. I'll just quote the law. "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." (Resurfice, para. 23.

13. That disconnect that I mentioned between what the judges write the law is, what lawyers seem to think the law is, and how many judges analyze the cases (at least as set out in their reported reasons) is getting worse. Look at the trial decisons in the Alberta Q.B. in 2011 if you care. This court is no worse than the other trial courts.

14. Next, the Ontario and British Columbia Courts of Appeal, at least in print, have been ignoring each other's written views about the meaning of Resurfice material contribution. (Alberta's is seemingly paying some attention to British Columbia's.) That's constitutionally permissible. Whether it's a good thing is a question for academics. (I'm not one, right?). Also, in B.C., since Resurfice, some appellate judges seem to have expressed the view (not in dissenting reasons) that the Athey material contribution test was never a separate test for proof of factual causation in negligence but merely a causal "yardstick" explaining when the but-for test applies. At least, that's what they seem to have said. If somebody has a better explanation (I don't), write an article. In Alberta? Look at the majority reasons in Nattrass v. Weber, 2010 ABCA 64 at paras. 46-47. Does that passage assert that the Athey material contribution test was not a separate test for factual causation.?

15. For my penultimate next, if you want to see how great the disconnect is between what some lawyers and some judges think the law is, look at the Clements trial reasons, the factums in the Clements BCCA appeal – Carswell has them online – and the factums in the Supreme Court of Appeal. Bart and Homer Simpson might well say "D'Oh!"

16. Almost finally, returning to points 7 & 8, it is literally correct that the Supreme Court did not actually say anything about the status of the Athey material contribution test in Resurfice. Anybody want to speculate about what'll happen, especially if the SCC says, in effect, "ahem, folks, you know we didn't actually overrule Athey material contribution. We know our own law (suggestions to the contrary are mistaken) and had we intended to overrule a decision we made so recently we would have said so explicitly. And, by the way, read our lips. It is a separate test for factual causation."?

I might, but I won't do so here.

17. Last, if you're wondering what I think of the Clements appellate reasons, the result seems correct on the evidence as I understand it. The BCCA's analysis of Resurfice material contribution, though? That's "just plain wrong".

Added Feb 11 - Part 2 of this discussion is on Slaw.ca - http://www.slaw.ca/2012/02/11/here-we-go-again-part-2/

Clerks, Research Lawyers, Judges & Scholarship (2)

[the parable continues]

I first typed legal scholarship, but good scholarship is good scholarship, right? It shouldn't matter whether it's "legal" scholarship or choosing another area, history scholarship (chosen simply because I happen to know at least one excellent scholar in that area - something to do with the genetics, no doubt).

 

Clerks, Research Lawyers, Judges & Online Research

This is a small parable for you 3Ls out there (and for that matter the rest of you 1Ls and 2Ls, too.

 

Another nice mess

(as Oliver might have said to Stan):

If I were to state a theory about something, then offer two examples of incidents (which I claimed were different) as supposed examples of the application of that theory, but then it turned out that

(1) the two examples were equivalent and not different and

(2) in any event the examples at best didn't show the theory in operation and at worst contradicted a basic premise of the theory

you'd be entitled to recommend (suggest)  I go back to the lab and try again. I should listen to you. Under some circumstances, you might be able to order me back to the lab to try again, even if I didn't want to.

Unfortunately, the problem I've set out accurately describes the Resurfice material-contribution theory.

Even more unfortunately, there's no body - other than Parliament - capable of ordering the Supreme Court back to the lab to try again. The rest of us are only entitled entitled to suggest the SCC rethink what it has said. However, it is not required to listen.

... and the BCCA shall lead them

(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

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

On first reading, there’s some good and some bad in the analysis.

Not quite another fine mess - the but-for mantra

A pre-Hallowe'en thought:

Provincial trial and appellate judges will tell you, because the SCC has told them to tell you (and because the law texts tell them), that the but-for test is the primary method (in Canada) used to establish factual causation.

Resurfice 2007 SCC 7, para. 21 (internal quotation marks omitted) : "the basic test for determining causation remains the but for test".

Resurfice 2007 SCC 7, para. 22 (internal quotation marks omitted):  "[t]he general ... 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”. 

One problem with this mantra is that it is right and wrong. 

 

 

Obiter and do what I say, do what I do?

This is for the judge, lawyer, and law student portion of our readership. The rest of you can safely ignore this. It won't ameliorate the consequences of anyone's friggatriskaidekaphobia. It may, however, provide some of you with more than your preferred daily dose of sarcasm.

Some years ago, an Ontario trial judge (who later became an Ontario Court of Appeal judge) wrote:  "With respect to her first basis for distinguishing ... [a prior Ontario Court of Appeal decision] ... it may be true that, in a highly technical sense, the view of the Court of Appeal ... [on an issue of law] ...  may not have been essential for the ...  [prior decision] ....  but to act on that technical analysis would be to ignore reality."  (Woloszczuk v. Onyszczak (1976),  14 O.R. (2d) 732 at 739,  1976 CarswellOnt 274 at para. 15.) 

It might be bad for one's professional future, too, particularly if one is a trial judge hoping to move up the pecking order.

But what if the problem is Supreme Court of Canada statements of law that are (1) arguably obiter and (2) clearly inconsistent with prior Supreme Court of Canada decisions which aren't even arguably obiter? What if the trial judge's own Court of Appeal has continued to apply the older cases?

Whose hand does the trial judge then bite?

Mimsying the borogroves

Consider this passage from the reasons in a recent trial decision in Alberta:

Brown v. Britsky, 2010 ABQB 445

 

 [82]  I am left, therefore, with the evidence that I do accept. Both the vehicles were partially over the centre line when the accident occurred.  I cannot conclude that by a wrongful act, the driver of either vehicle put the other into a position of difficulty in which he was forced to make a decision which turned out to be wrong. Thus, while I have reviewed the agony of collision and “faked left” decisions cited to me by counsel for the Ouellette parties, they are not helpful in resolving this case.
 
[83]  However, I can conclude that in the absence of any good reason, if a driver crosses the centre line of an undivided two lane highway when another vehicle is approaching, that driver is negligent. As a consequence, since I cannot conclude that either driver had any valid reason to be where they were on the highway at the time of the collision, I conclude that both drivers were negligent.
 
[84]  I turn next to the question of whether there was a causal connection between the negligence of both parties and the ensuing accident. In my view, causal connection has been demonstrated on the evidence. Had either party remained on his own side of the road, I find it probable that the accident would not have occurred.  Had Mr. Ouellette remained on his side of the road, he could have avoided the collision even if Mr. Britsky had crossed the centre line. The same is true with respect to Mr. Britsky. The basic test for determining causation is the "but for" test. I find that "but for" the negligent acts of both of the drivers the accident would not have occurred: Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333 [2007 SCC 7].
 
[85]  Having found that the negligence of both drivers caused the damage suffered, the next matter to be decided is the degree of fault to be assigned to each driver.

 

The trial judge stated that the but-for test was the applicable test. Then she held that but-for the conduct of each driver the accident would not have occurred. But, remember we are dealing with unconnected conduct. If "but for" the conduct of each driver the accident would not have occurred, does that not mean that the conduct of neither driver was a but-for cause? Take driver 1. Even if he had acted properly - the counterfactual - the accident would still have occurred. That is, the accident would have occurred without his negligence. So, then, doesn't this mean that his conduct was not a but-for cause if the but-for test is applied as it supposed to be applied? The same could be said for driver 2.

 

That leaves us with these questions:

 

1. How was it that the but-for test was applicable at all?***

 

2. If the but-for test was not applicable, does that mean that the drivers' conduct was NOT a but-for cause but was nonetheless a factual cause? (all words in italics added to inital post: DC)

 

3. If the but-for test is the only test in Canadian tort law for determining the existence of factual causation, shouldn't the actions of both drivers have been dismissed?

 

4. Was the trial judge's decision that the conduct of both drivers was a factual cause wrong?

 

The answers to Qs 4 and 1 are below the break.

 

You say tomahto, I say tomayto

or when I use a word?

Or, as H. Dumpty J (speaking ex cathedra) once said, it's all about who has the last word. (Actually, he said it's all about power, but having the last word is power.)

Consider:

Resurfice v Hanke 2007 SCC 7, para. 23  per McLachlin CJ. The contest is factual causation.

 23     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. 

Next Skinner v Fu, 2010 BCCA 321

[17]           The Supreme Court’s articulation of the “but for” test might usefully be contrasted with the judge’s analysis, in this case, in which he posed the following question at para. 9:

... In determining the issue of liability for the accident, I must determine whether the negligence of the defendant was the proximate cause or materially contributed to the occurrence of the collision. 

[18]           In my view the judge erred in the way he framed the analysis.  “Proximate cause” or “effective cause” are sometimes confusing terms. ....

Now consider. What did the trial judge mean by "proximate cause or materially contributed to"? Did the judge perhaps mean nothing more than "substantially connected"? The trial judge did not cite case law for the judge's statement of what had to be determined to establish either factual causation or causation. Careful readers of this blog, and others, know that factual causation is one aspect of causation.

 What if the trial judge had written "In determining the issue of liability for the accident, I must determine whether the negligence of the defendant was sustantially connected to the occurrence of the accident" and quoted Resurfice para. 23

What would the BCCA have done, then? Would the BCCA have said that McLachin CJ was using substantial connection to mean proximate cause in the traditional sense, and go on to hold the he trial judge erred for the same reasons the BCCA actually gave? They amount to saying that the trial judge used what amounted to a last clear chance analysis rather than considered whether the defendant's conduct was at least one of the factual causes.

Here's a rhetorical question: If the BCCA (and other appellate courts) can't or won't provide a clear, coherent, statement of what the law is, what do the appeal courts expect trial judges to do?

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

A cause, B cause, C cause, D (mark)

Most law reviews and journals have peer review of some kind, aimed at some independent review of the accuracy of the content of the proposed article. In most cases,  trade-specific tabloids such as The Lawyers Weekly will rely on the submitters to get it right.  The Lawyers Weekly recently published, in a "Focus" section, an article about aspects of proof of causation in tort. The article contains statements which are significantly wrong. I suggested that TLW should publish a correction. It said it would but limited to a letter of no more than about 450 words. I declined. I'm not Mozart but TLW isn't even Emperor Franz Joseph, let alone Salieri. Anyway, the link, here, is to a PDF file that contains my correspondence with TLW, a link to the article in issue, and my explanation for why the article is wrong on the points I discuss. The least of the errors is that the article makes asserts propositions  contrary to existing SCC case law. (In fairness to the author of the article, both the ONCA and the SCC did that, too, but the SCC has the last word ... in this life.)

[updated June 21 -  added "both the ONCA and"]

Factual causes and substantial connections, or how to suck and blow at the same time

The Canadian legal system recognizes the rule that parties and witnesses are not permitted to "suck and blow at the same time". A CanLII list of cases citing that principle is here. This rule should be distinguished from its corollary (for which I have not been able to find any Canadian authority) that it is permitted to "suck and blow at different times."

Thin Skulls, Crumbling Skulls, Pre-existing Conditions, Restoration Principle

law students and practitioners would do well to read the reasons for judgment in Rhodes v. Biggar, 2010 BCSC 762. It's a clear, succinct, road-map on how to deal with both doctrine and fact. Kudos to the trial judge.

Measuring angels' butts and wild (Canada) goose chases

Judges are now required to provide meaningful reasons for their decisions. That means that, more often than not, the judge will say something about the law that will be applied to the facts, whether in paraphrase or by quoting from another decision. 

The Supreme Court of Canada is at the top of our judicial pecking order. That means that judges below the SCC should be safe from criticism if they accurately quote, or paraphrase, the relevant SCC decisions right?

No.

As some of you will suspect, the rest of this post deals with factual causation. Those of you who aren't interested should skip to the conclusion.

A Small Ouroboros

Imagine a possible world in which Alice happens upon a lecture being given by one H. Dumpty J. Justice Dumpty is delivering the irregular Jabberwockian Lecture at the Erewhonian School of Law and Concrete Metaphysics at the National University of Erewhon. The title of the lecture is: "An Ouroborosian Analysis of Factual Causation in Canadian Negligence Law". The audience is the usual learned collection of Lords, Ladies, Judges, Prelates, academic and practicing Lawyers, Philosophers, law students and the like. Alice enters the lecture hall just as Justice Dumpty begins to explain the meaning of "material contribution" and "materially contributes".

(revised May 15, 8:45 p.m.)

More on but-for

In British Columbia, it appears that

1. a but-for cause in fact is not a but-for cause in law, even if it is a but-for cause in fact, if it did not materially contribute to the outcome

2. a but-for cause in fact materially contributed to the outcome if it played a significant role in the outcome.

See MacEaachern v Rennie, 2010 BCSC 625 (CanLII) at paras. 552, 553 and 581.

The death of the Athey material contribution test?

One question that Resurfice v Hanke 2007 SCC 7 may or may not answer is the status of the Athey v Leonati material contribution test as a separate test for proof of cause-in-fact in tort. It appears that some judges of the BCCA think it is as dead as the proverbial Norwegian blue parrot: seee Sam v. Wilson 2007 BCCA 622 at paras. 107-110 and  Chambers v. Goertz, 2009 BCCA 358 at paras. 15-23. On the other hand, some judges of some other provincial courts may believe otherwise, that it is just resting: e.g., Barker v. Montfort Hospital 2007 ONCA 282 at para. 51 and its progeny.

 

Tort - Duty of Care - Proximity - Psychological Injury - No Physical Injury

In Healey v. Lakeridge Health Corporation, 2010 ONSC 725, two patients (X and Y) at an Ontario hospital were diagnosed with TB. The hospital notified 4,402 persons who had had contact with X & Y at the hospital. Class actions were commenced. The classes were: (1) the infected class: people who developed TB; (2) the uninfected class: people who did not but complained of psychological ailments as a consequence of realizing they had been exposed and could have developed TB; and (3) family members of people in class (1) or (2) with derivative claims under Ontario law.

The hospital succeeded in having the claims of the uninfected class, and the derivative clailms based on the uninfected class claims, dismissed on a motion for summary judgment.

I recommend the reasons for those interested in the issues. They are by Perell J. His reasons are always worth reading.

Perell J's reasons include the conclusion that the hospital did not owe a duty of care to the uninfected persons in relation to the psychological damage claim. There is an extended discussion of proximity aspect of the duty of care analysis. The motion judge held the plaintiffs' case failed at the proximity stage and that even if there was a prima facie duty it would be negated, in any event, by policy considerations. He also held that the actual psychological injury alleged did not disclose a cause of action that required a trial.

People cynical about aspects the class action process won't find anything in the content of the dismissed claims to mollify that cynicism.

Additional excerpts from the case follow.

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.