Lionel,
Turning one Earl Grey leaf (Twinings), for what it's worth:
You're right that there's no explicit reference in Ediger to the robust, pragmatic, common sense mantra. I doubt the Court meant anything by that. The Court cited para. 8 of Clements when it explained but-for. Para. 8 of Clements has this sentence: "The “but for” causation test must be applied in a robust common sense fashion." "Pragmatic" reappears in Clements summary of the test in para. 46(1), which the SCC didn't refer to.
46(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.
I suppose we should conclude, given that Clements is still less than a year old, that the Court didn't intend to vary it; not the least because there was no suggestion that it is "incomplete".
The decision is so fact driven that the Court probably didn't want to say anything more than the bare minimum about causation principle. (I suspect it had nothing to do with any of them not wanting to make me have to rewrite my next paper once again.)
Cheers,
David
Cheifetz
From: "Lionel Smith, Prof." <lionel.smith@mcgill.ca>
To: ODG <obligations@uwo.ca>
Sent: Friday, April 5, 2013 11:26:08 AM
Subject: medical causation
The Supreme Court of Canada yesterday released a decision involving causation in the medical malpractice context, Ediger v Johnston
It is interesting to see that there is no reference to material contribution and a robust affirmation of but-for.
But I leave the reading of the tea leaves to the experts.
Lionel Smith