A Rhetorical Question for Canadian Appellate Counsel

If you were appearing before your jurisdiction’s Court of Appeal and:

1.  you didn’t mention one of the Court’s own decisions decided within the year, deciding one of the central issues in the case you were on; or
2.  mentioned that case but on another point without mentioning that it had decided the issue in your case; or
3. relied on a decision of your Court of Appeal for a proposition which had been rejected by the Supreme Court in at least 3 decisions after that Court of Appeal decision and (you did so) without mentioning the SCC decisions on point; or
4. argued for an interpretation of the leading SCC decisions which is explicitly contrary to what those decisions say and you failed to mention the last SCC decision on point which is also explicitly contrary, etc.

What do you think that someone on the appellate panel would say to you during argument if he or she spotted the problem, or would be said about your argument afterwards in the appellate reasons, and would happen to your reputation?

Now, instead of assuming that appellate counsel did anything like I’ve outlined in items 1, 2, 3 or 4, assume it was one or more of the members of an appellate panel.

That’s what happened in two recent appellant decisions. I don’t think we can blame the advent of Halloween.

Ontario

Sacks v Ross, 2017 ONCA 773, decided in October, 2017, has all of these problems, explicitly.

In Sacks, the panel somehow managed to ignore, or overlook, in their published reasons, the ratio of Surujdeo v Melady 2017 ONCA 41 even though the panel cited Surujdeo on a different issue. There’s no room for disagreement on that one. The panel, somehow, did not mention the fact that Surujdeo had decided the issue the Sacks panel decided and that the Surujdeo conclusion is the opposite of the Sacks conclusion.

The panel also misstated the current meaning of the but-for test for factual causation, as explained by the Supreme Court of Canada. The misstatement also isn’t helpful. That’s my opinion. I believe most practitioners in the area will agree with me.

I won’t waste readers time, here, attempting to explain what the Sacks panel did beyond the next sentence. The Sacks panel held that a trial judge should not use the word “necessary” in explaining the meaning of the but-for test to a jury, because all the but-for test requires is a “real and substantial connection” between the negligence and the injury.

If you have nothing better to do, read a 2003 ONCA decision not mentioned in the Sacks reasons which set out Ontario law as it was in 2003 when Athey material contribution to injury ruled the realm and, in Ontario, was known as “contributory causation”: Mizzi v Hopkins, 2003 CanLII 52145 (ON CA). Mizzi, and the “contributory causation doctrine”, for those who don’t “remember” that far back, was Ontario’s analogue of the later Alberta Court of Appeal decision in Resurfice (2005 ABCA 383). There, Alta CA stated that Alberta courts were to use the Athey material contribution (to injury) test rather than the but-for test any time there could be more than one cause. (Where there is more than one potential cause, the “material contribution” test should be used’: 2005 ABCA 383, [14]). The Alta CA had the temerity to accurately quote the SCC for that proposition; probably one reason why the SCC granted leave in Resurfice and implicitly interred material contribution to injury, something it explicitly did about 5 years later in Clements.

Counsel who work in the area will recall the explanation the SCC provided in Resurfice for rejecting the Alta CA’s view of the law, 2007 SCC 7, [19]

The Court of Appeal erred in suggesting that, where there is more than one potential cause of an injury, the “material contribution” test must be used. To accept this conclusion is to do away with the “but for” test altogether, given that there is more than one potential cause in virtually all litigated cases of negligence. If the Court of Appeal’s reasons in this regard are endorsed, the only conclusion that could be drawn is that the default test for cause-in-fact is now the material contribution test. This is inconsistent with this Court’s judgments in Snell v. Farrell, [990] 2 S.C.R. 311; Athey v. Leonati, at para. 14; Walker Estate v. York Finch General Hospital, [2001] 1 S.C.R. 647, at paras. 87-88, and Blackwater v. Plint, [2005] 3 S.C.R. 3, at para. 78.

If any of you wonder, after reading the Sacks reasons, why the appeal wasn’t heard by a 5-panel, so did I. I don’t see a good answer.

If you feel the need to read more on the subject, you’ll find my recurrent discussions in my blog. I probably mentioned the issues here, on occasion, once upon a time or two.

British Columbia

The dissent in Isbister v Delong, 2017 BCCA 340, also decided in October, 2017, explicitly has problems 3 and 4. The dissent also has versions of problems 1 and 2.

I’ve mentioned Isbister because the majority was silent on the problems of law in the dissent. There’s some irony in that. I explain in the last paragraph.

The dissenting asserted a meaning for the but-for test which relies on a 2011 BCCA decision interpreting Resurfice where that interpretation is explicitly inconsistent with the later decisions of the SCC in Clements, Ediger, Benhaim. The dissenting judge didn’t cite Clements etc on this issue; instead, she cited Resurfice, Blackwater, Athey, Snell. See 2017 BCCA 340, [177]

This is a BC trope, which, until now, was restricted to some BCSC trial judges.

The dissenting judge did, however, mention, all of Clements, Ediger, Benhaim on another issue.

The majority on the Isbister didn’t deal with this issue and didn’t comment on what the dissenting judge wrote. Some might find some irony in that silence: the majority were on the BCCA panel in Clements and one of the two wrote the Clements reasons. If you are interested, the not-mentioned 2011 BCCA decision that underlies the dissent is Farrant v Latkin, 2011 BCCA 336.

In passing: while I was practising in British Columbia, a few years ago, one plaintiff’s counsel, in closing submissions to the trial in a case I defending, told the trial judge that Farrant was still good law in BC because it hadn’t been specifically described as wrong, on this point, by the SCC; that is, not expressly overruled by the SCC. Then the counsel stopped as if waiting for the trial judge to say something. The trial judge didn’t reply; simply looked at counsel with what I thought was a bemused “you’re kidding, aren’t you?” expression. Counsel waited about 30 seconds, as I recall it, before saying something that amounted to “I’ll move to my next point”. The trial judge nodded.

Saskatchewan

On the other hand, this equally recent decision of the Saskatchewan Court of Appeal shows that some judges of that court get the point.

Anderson v Braun, 2017 SKCA 93

[38] On the basis of paragraph 12 of Clements, the traditional “but for” test presumptively applies to the case of multiple actors creating a loss. The practical application of the “but for” test allows a trial judge, if the evidence warrants it, to determine that there are several concurrent causes, i.e., multiple causes. This is so, even in cases where the actions of the various tortfeasors appear to be temporally distinct such as submitted by Mr. Anderson in this case. It is open to a trial judge applying the “but for” test to conclude on all the evidence that “but for” the negligent actions of each of the multiple actors, the loss would not have occurred notwithstanding the negligent actions of one or more being different in time than the negligent actions of the others: see Athey v Leonati, 1996 CanLII 183 (SCC), [1996] 3 SCR 458, where two car accidents, successive in time, were found to be causative.

Conclusion

Going 1 for 3 is excellent if you are a baseball player. If you are able to do that consistently in major league baseball, with the occasional flash of power, odds are you’ll become very wealthy and eventually be enshrined at Cooperstown.

However, judging isn’t baseball.

And, we’re in Canada, not the US, so let’s use hockey.

Judging also isn’t like playing goal in hockey. You’d be benched, permanently, if your save percentage was .333.

I now return to my regularly unscheduled life, elsewhere, pausing only to quote the concluding stanza from Lewis Carroll’s, “The Hunting of the Snark: An Agony in Eight Fits”:

They hunted till darkness came on, but they found
Not a button, or feather, or mark,
By which they could tell that they stood on the ground
Where the Baker had met with the Snark.

You knew I’d work a Carroll reference into this, somehow, didn’t you?

DC