When in Rome

or, in this case, British Columbia.

The BCCA decision in Clements (Litigation Guardian of) v Clements 2010 BCCA 581, reversing 2009 BSCS 112, implicitly points to a potential source of public unhappiness with the Canadian legal system, because of Tolofson v. Jensen [1994] 3 S.C.R. 1022, the Constitution Act, 1867′‘s s. 92 provision that property and civil rights are a provincial jurisdiction, and inter-provincial mobility, combine to mean that it’s likely enough that accidents occurring in BC will injure Canadians (and others) who aren’t residents of BC.

Ms. Clements was very badly injured in a motor vehicle accident. She sued the driver of her vehicle. (He had insurance.) She won at trial. She lost on appeal. I’ve discussed the merits of the decision, elsewhere, on another blog: here, here and here. Her problem was, apparently, a gap in the evidence relevant to proof of factual causation on the balance of probability. She did not have an expert on on accident reconstruction prepared to say “probably’; or, at least, Ms. Clements’ lawyers could not find one that they were prepared to put on the stand.

An uninformed lay person – even some lawyers – might find it odd that “common sense”, or even “common sense inferences” (if there’s a difference) were not available to Ms. Clements, yet were available to the plaintiffs in Goodman v. Viljoen , 2011 ONSC 821 (see para. 207). Goodman is an extremely tragic, more than ordinarily-complicated, medical malpractice action.

In Clements, the reason why the “common sense” approach to the use of but-for test was not applied by the B. C. Court of Appeal, probably has to at least something to do with BC specific case law. The appellate reasons do not contain a discussion of why the common sense approach to factual causation, as mandated by the Supreme Court in Snell v Farrell, did not apply in favour of the Ms. Clements. There is nothing in the reasons even hinting that Ms. Clements’ counsel made that argument. Yet, the trial judge had made a specific finding that “ordinary common sense support[ed]” the conclusion that there was a factual causation relationship between the negligence and the injury.

The politics of s. 92 aside, it seems to me that it won’t be a good thing for the respect accorded by the public to the common law realms in the country if there’s a provincial/territorial difference on something as basic as when the but-for test applies, so that Ms. Clements, on the the trial judge’s findings of fact, would succeed everywhere in common law Canada other than in BC, so long as the judges are not prepared to adopt the BC law. 

So, maybe, this is one case that the SCC will grant leave, if only to ignore the causation principles generally and deal with the BC authorities about the effect of some (plaintiff-supporting) expert evidence on the use of the so-called common sense inference.* Many Ontario civil litigators (and some others) will know that, some 5 years ago, the Ontario Court of Appeal, in Aristorenas v. Comcare Health Services 2006 CanLII 33850 at para. 63 (ONCA) leave to appeal denied 2007 CanLII 10550 (SCC), adopted a statement from a now very-well known (for other reasons, too) House of Lords decision about the use of “common sense” in decisions about whether X was a factual cause of Y: “The mere application of ‘common sense’ cannot conjure up a proper basis for inferring that an injury must have been caused in one way rather than another …”

There’s occasional reason to believe that that reminder is honoured in the breach.

* Leave to appeal has been sought. I’m not holding my breath it’ll be granted. Blue’s not my best colour.