Dear Colleagues:
Those of you interested in causation will be interested in
Benhaim v. St Germain, 2016 SCC 48 where the SCC have decided that trial judges are not required to draw adverse inferences of causation where the negligence of the defendant makes it difficult for the plaintiff to prove causation:
http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16224/index.do#.
The deceased (E) was a non‑smoker who exercised regularly and took care of himself, died tragically of lung cancer at the age of 47. His partner, in her own name, in her capacity as tutor to her son, and as E’s universal
legatee, brought an action against E’s physicians. She alleged that the negligent delay in diagnosing E’s cancer caused his death. The physicians argued that the cancer would likely have taken E’s life even if he had been promptly diagnosed, and therefore,
that the delay in diagnosing him was not the cause of his death. The trial judge concluded that while E’s physicians were both negligent, their negligence did not cause E’s death. The trial judge acknowledged that she could draw an adverse inference of causation
against the physicians because their negligence made it impossible to prove causation, but she drew no such inference. The Quebec Court of Appeal reversed. The majority held that the trial judge erred in law by failing to draw an adverse inference of causation.
The concurring judge concluded that the trial judge should have found that causation had been established.
The majority of the SCC held that Snell v. Farrell, [1990] 2 S.C.R. 311, and
St‑Jean v. Mercier, 2002 SCC 15, [2002] 1 S.C.R. 491, made it clear that in such circumstances, an adverse inference of causation is one that trial judges are permitted to draw. It is not one they are required to draw. Thus given that there was no overriding
and palpable error in the trial judge’s fact finding, her decision stood.
The dissenters, while agreeing that there is no rule of law, would have held that the trial judge’s failure to draw an adverse inference was a palpable and overriding error in relation to the facts presented at trial.
Sincerely,
Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)