Solomonic Judging?

[Broken record on]

Smith v. Moshrefzadeh, 2012 BCSC 1458  is a motor vehicle [accident], personal injury action. Liability was admitted. The issue was how much.

The chart shows what the the plaintiff claimed, the defence position, and the award.

This is what the trial said the law was that determined whether the defendant’s negligence was a cause.

 [59] The primary test to be applied in determining causation is commonly articulated as the “but for” test: a defendant will be fully liable for the harm suffered by a plaintiff, even if other causal factors were at play, so long as the plaintiff establishes a “substantial connection” between the injuries and the defendant’s negligence beyond the de minimus range: Farrant v. Latkin, 2011 BCCA 336 (B.C.C.A), at paras 9 and 11; Athey v. Leonati, [1996] 3 S.C.R. 458; Blackwater v. Plint, 2005 SCC 58; Resurfice Corp. v. Hanke, 2007 SCC 7; Clements v.Clements, , 2012 SCC 32.

That is undoubtedly what the BCCA said the meannig of but-for was as a result of Resurfice before the SCC’s decision in Clements. The BCCA hasn’t yet spoken about the effect of Clements on the meaning of but-for. It probably isn’t what the SCC says the law is, at least if we take Athey’s statements at face value: even a minor role is sufficient so long as it is a necesary role (Athey, para. 41.2). That de minimis reference? It ain’t part of the but-for test in Athey. It was part of the definition of “contributed” for the alternative test for factual causation (whatever it meant) that eventually came to be called the Athey material contribution test:

[15] The “but for” test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury: Myers v. Peel County Board of Education, [1981] 2 S.C.R. 21, Bonnington Castings, Ltd. v. Wardlaw, [1956] 1 All E.R. 615 (H.L.); McGhee v. National Coal Board, supra. A contributing factor is material if it falls outside the de minimis range: Bonnington Castings, Ltd. v. Wardlaw, supra; see also R. v. Pinske, (1988), 30 B.C.L.R. (2d) 114 (B.C.C.A.), aff’d [1989] 2 S.C.R. 979.

So now we may have an unhappy plaintiff and maybe an unhappy defendant. Maybe an unhappier plaintiff, and plaintiff’s lawyer, if the defence made a high enough offer to trigger cost consquences but the defence figures make me doubt that.

Bearing in mind that appeals are from the evidence and the judgment, not the reasons – assuming the reasons are an adequate explanation of the judge’s analysis – those of you who are litigators (and care to look at what the judge wrote) should look at paras. 54, 60-64, 66, of the Smith reasons and ask yourself this question: assuming the evidence is as the judge wrote, is there a snowflake’s chance in a very warm place of a successful appeal by either side? Even if the BCCA were to say that the judge’s explanation of the meaning of the but-for test is wrong?

[Broken record off]


  1. Maybe it’s run off from magic mushroom fields that compells B.C. judges to stubbornly refuse to just apply “but for”, plain and simple. That was all that this case required- the judge makes sensible finds of fact that, IMHO, on a “but for’ test lead to damages along the lines assessed. I agree the judgment is, or ought to be, appeal proof because of those findings.

    Has this affliction spread east of the Rockies?

  2. I think the judge did apply but-for plain and simple as you’ve said, after quoting what the BCCA said the law was just to make sure nobody could complain that the judge hadn’t referenced that.

    East of the Rockies? Not literally, that I know of. But, if you look at many judgments, you’ll see the judge applying the but-for test on the basis that the negligence “caused or contributed to” the injury, never explaining what the “or contributed to” means. (A posssible explanation for that is that, currently, all judges put in most of their qualifying time as lawyers before 2007 and the “caused or contributed” phrase is as ingrained as the “.1” or “.2”.) The judge’s use of “contributed” has to mean nothing more than “is a cause”. Unnecessary redundancy (snicker) is, of course, one of the hallmarks of our profession, right?