Clements (Litigation Guardian of) v. Clements, 2010 BCCA 581 – right result, bad reasons.
A sub-text to the case is the manner in which the panel used a hot-off-the press article in a law review to explain and justify its analysis and conclusion, introducing and setting up the manner in which it intended to use the article this way:
 The question of when it will be appropriate to resort to the material-contribution test discussed in Resurfice Corp. has been the subject of some appellate consideration and considerable academic writing. In my view, the answer to this question is fully and articulately set out in a paper by Professor Erik S. Knutsen entitled “Clarifying Causation in Tort”, found at (2010), 33 Dal. L.J. 153. Professor Knutsen’s view, with which I agree, is that a judge can resort to the material-contribution test in only two situations: what he refers to as ones involving circular causation and dependency causation. In all other cases, causation must be determined on the but-for test.
The panel is right that there has been “considerable academic writing”. I’ve written some of it. (Some might accuse me of much of it, certainly more words than most, but that’s true only about the Canadian writing.) It’s my view that not much of it – the academic writing, that is – agrees with the contents of Prof. Knutsen’s article. The substance of the disagreement is an issue for another day. What isn’t is the fact that there is substantive disagreement but there’s no acknowledgement of that in the reasons.
The panel is also right that there has been “some appellate consideration”. Unfortunately, with the exception of a recent contribution from the Alberta Court of Appeal, all of what is useful appellate consideration is in decisions of the British Columbia Court of Appeal. However, other provincial appellate courts, even Ontario’s have purported to say something. That something is no doubt binding on the inferior courts in the particular jurisdiction. It just hasn’t has not added anything significant.
Lawyers from outside of B.C. might well wonder why the B.C. C.A. didn’t apply, let alone discuss in any detail, the application of the inference approach to the use of but-for mandated by the (ahem) Supreme Court of Canada in Snell v. Farrell. There’s more likely than not a B.C. case law reason for that. (That’s a hint that there is such case law. In can be found in my article, “Snell Reference” aka “Snark” – those of you who know me know how apt that alias title occasionally is – at 30 Advocates’ Quarterly 1.) But if that is so, the B.C. C.A. didn’t explain. In any event, the appellate reasons certainly don’t suggest that Ms. Clements’ counsel simply conceded that the inference approach wasn’t applicable. That should mean something.
Ms. Clements might well be heard to say “But he was at fault, and I adduced all of the evidence I could get, and the reason I couldn’t get any more is that science couldn’t do any better” and I still lost because I couldn’t establish causation? How come? Why wasn’t it just plain wrong that I lose?
The answer to that is principle and floodgates, but it’s probable the B.C. C.A. didn’t want to put it quite that way; well, at least the floodgates part. The answer to that is that allowing Ms. Clements to win, if the evidence wasn’t going to be found to be enough to infer factual causation on the balance of probability, would mean that every plaintiff in a similar situation should win. It would, as the B.C. C.A. recognized, amount to replacing the but-for test with the Resurfice version of the material contribution test. There’s no doubt that the B.C. C.A. recognized how ironic that would be, since Resurfice purported to set out the new criteria for the application of the material-contribution test in response to an Alberta Court of Appeal decision which, if upheld – so the SCC said – would have had the result of replacing the but-for test with the Athey version of the material-contribution test. Ms. Clements had, according to the trial judge, insuperable evidential problems precluding the use of but-for in her favour. An eminent British jurist wrote, recently, the “general rule that insuperable evidential problems are the claimant’s hard luck”. If the case wasn’t going to be decided on the basis of but-for, then allowing Ms. Clement to win would throw out a bedrock principle of the common law system, which is that the defendant gets the benefit of the doubt.
Still, two of the purposes of adequate reasons for judgment are “enabling interested members of the public to see whether justice has been done” and “explaining to the losing party why he or she lost”: R. v. Sheppard,  1 S.C.R. 869 at para 24; Diamond Auto Collision Inc. v. The Economical Insurance Group, 2007 ONCA 487 at para. 11. (There are equivalent pronouncements from the appellate courts of the other provinces & territories. I just don’t have them available as easily as the Ontario case(s) and the SCC’s.).
Even more “still”, I very much wonder whether the the result – the plaintiff losing – would have been the same in the Ontario Court of Appeal or the New Brunswick Court of Appeal. I know I’m not the only one. Snell is a New Brunswick decision. Ontario? Consider Moore v. Wienecke, 2008 ONCA 162.
In case anybody wonders, I’m bemused (not irked) that a recently published article is so extensively quoted in an appellate decision. Heck, shortly after Snark was published, a Nova Scotia trial judge wrote this, in Whey v. Halifax (Regional Municipality), 2005 NSSC 348 at para. 11:
[Snark] is a complete, if not overly analytical, attempt to reconcile the traditional “but-for” approach, with the newer (and some say alternative) “material contribution” approach, applied in the rare circumstances when the “but-for” analysis is not “workable”. His review of the key post-Snell decisions … and his statement of the law, set out in the first two paragraphs of his conclusion, at page 101, is the current state of the law in Canada. His summary of the principles of factual causation, at page 22, and of the Snell common sense approach, at pages 27 to 30, are helpful.
I’ve never understood the “overly analytical” part. After reading this comment, I glanced at Snark to see which part of the analyses I could have dispensed with. If I may borrow the point Mozart is supposed to have made in an apocryphal discussion with Emperor Franz Joseph, Snark has just the right number of words; is just analytical enough.
In any event, those of you who take the time to read Prof. Knutsen’s article will find that I am referred to on more than one occasion. And I can prove that that I suggested to colleagues that the judiciary would like it. I also suggested they’d be (mis)led down the wrong garden path (even to the author.)
What can I say? Everybody needs a hobby. I’ve given up letting people shoot hard rubber objects at a 4 foot by 6 foot area, in which I’m supposed to be, under circumstances in which it is understood I will (generally) try to have the object hit me, not try to get out of the way. I used to attempt to teach that skill, too.
Effective January 1, 2011, I join a new firm in Toronto: Smockum Zarnett Percival. This is somewhat of a “going home” since SZP is a successor to the firm which which I was associated for some 20 years. I don’t have to go very far, physically, either: it’s 10 floors down in the same building. Moving my files and most of the rest of what has to move took just a few hours, yesterday.
Best wishes to for the holiday season to all Slaw members and readers.