Jurisprudential Aether, Something in the Water, or Something in the Air?

When the Supreme Court of Canada says “X” in 2007, and repeats “X” in 2011 adding explicitly that “X does not mean Y but means Z”, it is reasonable to assume (is it not?) that, once word of what was said in 2007 and repeated in 2011 spreads through the Canadian “jurisprudential aether”, however long that takes, the judges of the lower courts in Canada will pay attention.

It’s always worth quoting this reminder about pecking orders in the Canadian judicial universe:

[51] Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder.

[52] I am bound by decisions of Queen’s Bench judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada. Very simply, Masters in Chambers of a superior trial court occupy the bottom rung of the superior courts judicial ladder.

[53] I do not overrule decisions of a judge of this court. The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.

See South Side Woodwork v. R.C. Contracting, 95 AR 161, 1989 CanLII 3384 (AB QB).

Given the above, the concept of common sense – meaning whatever it is that common law judges advert to when they call on that concept to provide an explanation for a conclusion – requires us (does it not?) to conclude:

(1) the Court of Appeal of Newfoundland and Labrador would be aware, by now, of what the Supreme Court of Canada declared an aspect of Canadian law to be, in common law Canada, almost 6 about 8 years ago, or at least about 4 years ago, because about 4 years and certainly about 6 8 years is more than enough time for some medium to transport the information contained in the SCC’s statements from Ottawa to St. John’s;

(2) the same proposition applies to the state of knowledge of lawyers in St. John’s who practice in the relevant area of law; certainly, at least, those professing expertise in the area.

[The corrections are because I was cutting and pasting from old material, and attempting to count on my fingers while typing.]

If you accept (1) and (2) what could be the explanation for what happened in the case I’ll quote from immediately after the next paragraph?

No, it’s not a case from the province on Canada’s Western coast. Or any of the territories on Canada’s northern coast. Not even a Prairies, Central Canada, mainland Atlantic Canada, or Canada’s smallest province, case. My current home province’s Supreme Court may be the worst offender, but it’s not the only one.


[66] I would adopt the statement of the law concerning causation set out by the respondent in his factum:

99. In medical malpractice cases, the question of causation is often not straightforward. In order to establish liability for the alleged damages, the Plaintiff must prove, on the balance of probabilities, that either:

● but for the defendant’s actions, the Plaintiff’s injuries would not have occurred; or

● the Defendant’s actions materially contributed to the Plaintiff’s injuries.

100. There are two seminal cases which discuss the principle of causation in the context of liability for medical negligence. They are Snell v. Farrell 1990 CanLII 70 (SCC), [1990] 2 S.C.R. 311 and Athey v. Leonati 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458. One can extrapolate the following general principles from these decisions:

● Causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury.

● The general, but not conclusive, 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.

● 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. A contributing factor is material if it falls outside thede minimis range.

● The plaintiff must prove that the defendant’s tortious conduct caused or contributed to the plaintiff’s injury. The causation test is not to be applied too rigidly. Causation need not be determined by scientific precision. A question of causation is “essentially a practical question of fact which can best be answered by ordinary common sense”. Although the burden of proof remains with the plaintiff, in some circumstances an inference of causation may be drawn from the evidence without positive scientific proof.

101. In Clements (Litigation Guardian of) v. Clements, 2012 SCC 32 (CanLII), [2012] 2 S.C.R. 181, the Supreme Court of Canada confirmed the primary “but for” test of causation and aptly summarized the present state of the law as follows …

See Kirby v Raman, 2015 NLCA 48 (CanLII)

What I have omitted from para. 101 of the quotation above is paragraphs [8-11] of Clements.

Let’s agree that the second and third bulleted points in para. 100 are an accurate statement of what Canadian common law was between the time of the release of the SCC’s reasons in Athey, in 1997, and the release of the SCC’s reasons in Resurfice Corp. v. Hanke, [2007] 1 SCR 333, 2007 SCC 7 in February 2007.

Let’s also agree that the second bulleted point remains good law.

What are we to say about the third?

Especially when it is explicitly completely, entirely, indisputably, literally, undeniably, contrary to what the SCC said in Clements about “material contribution”, even if not in the portion of Clements quoted in the published reasons in Kirby v. Raman. 

For those who need the reminder, that discussion, in Clements, commenced at para. 13. It is, in part, including the Court’s summary:

[13] To recap, the basic rule of recovery for negligence is that the plaintiff must establish on a balance of probabilities that the defendant caused the plaintiff’s injury on the “but for” test. This is a factual determination. Exceptionally, however, courts have accepted that a plaintiff may be able to recover on the basis of “material contribution to risk of injury”, without showing factual “but for” causation. As will be discussed in more detail below, this can occur in cases where it is impossible to determine which of a number of negligent acts by multiple actors in fact caused the injury, but it is established that one or more of them did in fact cause it. In these cases, the goals of tort law and the underlying theory of corrective justice require that the defendant not be permitted to escape liability by pointing the finger at another wrongdoer. Courts have therefore held the defendant liable on the basis that he materially contributed to the risk of the injury.

[14] “But for” causation and liability on the basis of material contribution to risk are two different beasts. “But for” causation is a factual inquiry into what likely happened. The material contribution to risk test removes the requirement of “but for” causation and substitutes proof of material contribution to risk. …

[15] While the cases and scholars have sometimes spoken of “material contribution to the injury” instead of “material contribution to risk”, the latter is the more accurate formulation. As will become clearer when we discuss the cases, “material contribution” as a substitute for the usual requirement of “but for” causation only applies where it is impossible to say that a particular defendant’s negligent act in fact caused the injury. It imposes liability not because the evidence establishes that the defendant’s act caused the injury, but because the act contributed to the risk that injury would occur. Thus, this Court in Snell and Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), [2007] 1 S.C.R. 333, raised the possibility of a material contribution to risk approach. …

[28] To recap, the Canadian Supreme Court jurisprudence on a material contribution approach to date may be summarized as follows. First, while accepting that it might be appropriate in “special circumstances”, the Court has never in fact applied a material contribution to risk test. Cook was analyzed on a reverse onus basis. Snell, Athey, Walker Estate and Resurfice were all resolved on a robust and common sense application of the “but for” test of causation. Nevertheless, the Court has acknowledged the difficulties of proof that multi-tortfeasor cases may pose ― difficulties which in some cases may justify relaxing the requirement of “but for” causation and finding liability on a material contribution to risk approach.

[33] We have seen that the jurisprudence establishes that while tort liability must generally be founded on proof that “but for” the defendant’s negligence the injury would not have occurred, exceptionally proof of factual causation can be replaced by proof of a material contribution to the risk that gave rise to the injury.

[34] In Resurfice, this Court summarized the cases as holding that a material contribution approach may be appropriate where it is “impossible” for the plaintiff to prove causation on the “but for” test and where it is clear that the defendant breached its duty of care (acted negligently) in a way that exposed the plaintiff to an unreasonable risk of injury. As a summary of the jurisprudence, this is accurate. However, as a test it is incomplete. A clear picture of when “but for” causation can be replaced by material contribution to risk requires further exploration of what is meant by “impossible to prove” (Resurfice, at para. 28) and what substratum of negligence must be shown. I will discuss each of these related concepts in turn.

[46] The foregoing discussion leads me to the following conclusions as to the present state of the law in Canada:

(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.

(2) Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.

Let me proffer an explanation, in honour of All Hallow’s Eve later tonight.

In physics, before Einstein, “aether” was the the label for the “[h]ypothetical substance filling space that provides the medium for light to propagate”: Brian Green, The Fabric of the Cosmos (New York: Vintage Books, 2004) at 537 (paperback).

“Slow light” is a term scientists use to mean “the propagation of an optical pulse or other modulation of an optical carrier at a very low group velocity. ‘Slow light’ occurs when a propagating pulse is substantially slowed down by the interaction with the medium in which the propagation takes place.” “Slow Light“, https://en.wikipedia.org/wiki/Slow_light (accessed October 31, 2015) and “Slow Light”, in “Physics Central“, http://physicscentral.com/explore/action/light.cfm (accessed October 31, 2015).

“Scientists have long known that the speed of light can be slowed slightly as it travels through materials such as water or glass. However, it has generally been thought impossible for particles of light, known as photons, to be slowed as they travel through free space, unimpeded by interactions with any materials.” However, very recently, researchers from the University of Glasgow and Heriot-Watt University demonstrated that it is possible to slow the speed of photons passing through a vacuum, seemingly permanently. That is, photons slowing down while passing through water or glass, for example, resume their higher speed on exiting. However, the researchers claim to have found a way to slow photons which, they suggest, seems to be permanent. See “Scientists slow down the speed of light travelling through air“, http://www.hw.ac.uk/news/scientists-slow-down-speed-light-travelling-20509.htm (accessed October 31, 2015).

I assume that would mean until something else happens that returns the affected photon’s energy level to its previous state.

It is currently accepted that the speed of light – the speed of photons as they pass through a vacuum – is 186,282 miles per second (299,792 kilometres per second; 299,792,458 metres per second). The speed of electrons through the air on Earth – which isn’t a vacuum: except, apparently, around portions of the Air Canada Canada and the Rogers Centre, in Toronto – or through wiring made of matter, is somewhat less. Here and here, if you’re interested in why. Part of the why is the reason that explains why wires carrying electricity may get hot, sometimes even hot enough to start a fire and provide work for deserving lawyers.

The physical distance between the notional centres of Ottawa and St. John’s, Newfoundland, is about 2114 km as a sober crow flies, apparently about 2,727 km if one drives on the Trans-Canada Highway, and I have no idea if one relies on Air Canada too often in winter.

Canada is once again a part of the planet Earth, so supposed to be subject to the same physical laws as the rest of the planet. (As I understand physics, Canada would be subject to the same physical laws even if were not part of the planet, but we don’t have to go into the extent of my understanding.)

Electrons and photons can be “made” to carry information, in the same sense that stone, papyrus, even paper, are made to carry information. That’s why we once had telegraph lines, then telephone, then radio, then television, and now have all the versions of electronic storage and transmission of data. The pixels you are reading “now”, whether you are online or offline – assuming you didn’t waste paper or some other retrieval and reproduction method and “print” this, first – are an example of information carried by electrons and reproduced by electrons. If you “printed” this first, your receiving and reproduction equipment “read” the information and converted into whatever medium you’re “now” using to read this rant.

Photons would have been involved, too, if optical fibre was involved in involved in the transmission process.

Given the speed at which photons or electrons “travel”, whether in a vacuum or otherwise, the physical distance between Ottawa and St. John’s shouldn’t, in the ordinary case, be significant to the magnitude (duration, extent) of the amount of time it takes for information to get from Ottawa to St. John’s, unless it’s transported by somebody walking, running, swimming, riding, driving, canoeing, kayaking, boating, or flying from Ottawa to St. John’s (see my reference to stone, papyrus, paper, above) unless there’s something unique about Canadian legal information.

I’ll let you do the math.

However, even if that Canadian legal information were being transported by a natural person (even on a Shetland pony), using one or more or any combination of the the methods I’ve listed above, that information should have arrived in St. John’s by now, assuming he or she (the person, with or without the pony) left Ottawa reasonably soon after February 2007, or at least after June 2011. That’s assuming no person ordinarily resident in St. John’s, who might have good (or any) reason to acquire that information, and had visited Ottawa, or some other place the information had already reached, hadn’t already acquired it and brought it back to St. John’s.

Heck, the newest member of the SCC even wrote about the subject of the SCC, Clements, and “material contribution in the – get this – Supreme Court of Canada Law Review: Russell Brown, “Cause-in-Fact at the Supreme Court of Canada: Developments in Tort Law in 2012-2013” (2014), 64 S.C.L.R. (2d) 327. I have never been in the courthouse on Duckworth St in St. John’s, and haven’t tried to find the library’s catalogue online to see what was supposed to be physically available to bench and bar during the relevant periods; however, even if the SCLR wasn’t physically available, it is available and accessible online (budgetary constrains permitting, at least for public bodies). Or, one might always ask a friend who has access, even one in the academy.

Nonetheless, one conclusion entailed by the quotation from Kirby is that relevant information, somehow, hadn’t yet reached at least some portions of St. John’s – those inhabited by the NL CA and counsel for the Respondent – either when the case was argued, or later but before the reasons were written. (It’s at least plausible that it had reached counsel for the Appellants – who’d have no reason to correct this mistake by counsel for the Respondent – because of a collateral relationship with Ottawa. Or because that material contribution portion of Clements was mentioned in passing in the trial reasons in Kirby where the trial judge, after quoting paragraphs 6-11 of Clements, mentioned the discussion of the material contribution test in Clements: see para. 262-63. (In passing, do you think the Appellants’ counsel is now relieved that relationship didn’t pan out the way he likely assumed it would, given what likely would have happened to him, too, had it?)

How might we explain that delay? Obviously, there might be something about the mechanism(s) that transport that information from Ottawa to St. John’s. And, since that mechanism has to exist in something – nature abhors a vacuum – then we need a name for that something. “Jurisprudential aether” is as good as any.

Thus, there must be some aspect of the “jurisprudential aether” (JA), at least as that JA exists in Canada between Ottawa and St. John’s, which explains the undeniable inconsistency between what the Supreme Court of Canada explicitly wrote about “material contribution” in the context of proof of causation, about 4 years (and at least what’s at least strongly implicit in what the Court about 8 years ago) and what was written in the recently released published reasons in Kirby.

Or, as Vernor Vinge speculated in A Fire Upon The Deep (Tor Books, 1993), the laws of physics in the universe are variable so that there are zones in the universe in which, somehow, the speeds of atomic particles through a vacuum or otherwise vary significantly from one zone to another. Assuming this, we might infer that, somehow, the “part(s)” of Canada “between” Ottawa and St. John’s through which legal information has to travel to get from Ottawa to St. John’s are caught in a “slow” zone, relatively speaking. (It’s not the case that St. John’s, itself, need be.) The various quotation marks in this paragraph are meant to indicate I’ve allowed for the possibility that the information might somehow (attempt to) reach St. John’s other than by travelling a route that’s literally, even notionally, “between” Ottawa and St. John’s. For example, the information might be routed to St. John’s from other directions farther afield: say, Upper Lower Slobbovia; or Cathay; or Sleepy Hollow. Even, stretching the point, Come-by-Chance (NL).

Unless, of course, all that happened is that all of the members of the panel, and all of the lawyers in the local branch of the large law firm whence came counsel for the Respondent, all of whom ought to have known better, happened to concurrently (simultaneity wasn’t necessary, I think), have a very bad senior moment. Even the associates who undoubtedly were involved in the research and writing of the factum, so as to save their client money.

It happens; but, it shouldn’t. (The senior moment thing, not the saving the client money thing.)

Fortunately, that bad moment is entirely irrelevant to the result of the case.

Nonetheless, if somebody on that NL CA panel feels embarrassed, and is looking for somebody to blame outside of the judicial cloister, that judge will know exactly where to look, to pass (or spread) the blame.

That too happens even if it shouldn’t.

Had I had the option, I’d have categorized this one under “attempt at humour”, too, rather than “miscellaneous”, if only because “recommended reading” is just a bit presumptuous.

Comments are on so I’ll accept clapping, even the rattling of jewellery.

[cross-posted, with embellishment and some editing, from davidcheifetz.ca – http://davidcheifetz.ca/2015/10/31/jurisprudential-aether-something-in-the-water-or-something-in-the-air/]



  1. Addendum Nov 1, 2015. I had skipped the first bulleted point, undoubtedly subconsciously intentionally. I’ll deal with it now, briefly. I’ll repeat a point I’ve made before which seems self-evident to me. It’s the problem in the “caused or contributed” phrase. We all know what “caused” is supposed to mean in the context of the but-for test: “necessary”. What does “or contributed” add? If it means “caused meaning necessary”, nothing. If it means something other than “necessary” then maybe it’s time for a Homer Simpson “D’oh” moment.