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 http://www.scc-csc.gc.ca/case-dossier/cms-sgd/sum-som-eng.aspx?cas=34100.
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  2 S.C.R. 311, 1990 CanLII 70. The parties’ factums are available on the Supreme Court’s web site. See http://www.scc-csc.gc.ca/case-dossier/cms-sgd/fac-mem-eng.aspx?cas=34100. 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,  1 S.C.R. 647, 2001 SCC 23. Only McLachlin C.J. remains from the panels that decided Snell and Athey v. Leonati,  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.
On the other hand, the Continuing Legal Education Society of British Columbia’s (CLE BC) first “Causation in Tort” conference was held in Vancouver in June 2008, about 1 year after Resurfice. “Causation in Tort II” was held in Vancouver in June 2011. It will probably be late 2012 or early 2013 before the Clements reasons are released, assuming that Supreme Court concludes that the case requires something more than a brief oral judgment. Assuming the Supreme Court does attempt, again, to clarify the jurisprudence, it will probably take a year or so before the Clements reasons will have been considered often enough by the provincial and territorial courts that clear trends will be apparent. So mid 2014 will be just about time for “Causation in Tort III” in Vancouver, in May or June. (If you’ve spotted a trend, you’re right.)
For those who care about such things, the materials from both “Causation in Tort” conferences are very good* and reasonably priced. They are available through the CLE BC web site store. (No, I don’t get direct kickbacks but if enough people by the material that’ll probably hint at some reason for the next conference.)
(*Full disclosure – I was involved in the preparation of some of the materials in both conferences. The “Causation in Tort II” material includes sample factums for a mock appeal to the British Columbia Court of Appeal that was part of the “Causation in Tort II” programme. The factums cover a wide range of issues. The unfortunate plaintiff – an otherwise successful British Columbia lawyer – somehow managed to develop both AIDS and mesothelioma, then be killed in a rather complicated motor vehicle accident while on his way to an appointment with one of his doctors. The appeal dealt only with liability.)