Dear Colleagues,(From my safer roost in Oxford)
Nobody should bother with Benhaim except those who have to read Canadian law for some valid reason.
It does not establish anything new in in Canadian common law and there is nothing about the analysis in either the SCC majority or SCC dissent that will be of any use to anybody interested in the meaningful development of any aspect of factual causation jurisprudence in the common law, within or outside of Canada. I leave Quebec law for others.
However, should you choose to read it, I recommend that you first read the Que CA majority reasons (they're in English) together with at least the portion of the appellants' appeal brief and reply which identifies the issues. You'll find those documents on the
SCC's web site.
What you will have learned after you finish reading is:
1. The SCC majority and dissent agreed on what the law was.
2. Both agreed on the facts.
3. Both agreed that the Que CA had made errors of a nature which justified the SCC interfering with the Que CA verdict and substituting its own decision.
4. They disagreed on what the errors were.
5. The SCC dissent would have dismissed the appeal.The dissenting judges concluded that, whether on common law or civil law principles, on the evidence the trial judge committed a number of significant errors of fact and law without which she would have or ought to have concluded that the plaintiff had established factual causation on the balance of probabilities. The dissent, in essence, treated the trial as a rehash of what happened at trial in Snell. The author of the dissent could have, but did not, summarize the dissent by quoting the 3rd last paragraph of Snell with very minor changes:
I am confident that had the trial judge not stated that "[substitute whatever one thinks is appropriate for the Snell trial judge's '
I cannot go beyond this since neither doctor did and I should not speculate'
"]
, [s]he would have drawn the necessary inference. In stating the above, [s]he failed to appreciate that it is not essential to have a positive medical opinion to support a finding of causation. Furthermore, it is not speculation but the application of common sense to draw such an inference where, as here, the circumstances, other than a positive medical opinion, permit.
(If I had to guess why the dissenting reasons don't have the quotation, I'd say it's the appearance of the nonsensical common sense cant in the last sentence.)
6. The SCC majority concluded that, whether on common law or civil law principles, on the evidence the trial judge did not commit any errors of fact or law in concluding that the plaintiff had not established factual causation on the balance of probabilities. The majority allowed the appeal and restored the trial judgment dismissing the action.
7. The SCC majority AND dissent reasons are expressly silent on an issue you'd have thought they'd deal with, particularly the dissent : whether what seems to have been the key statistical evidence underlying the Quebec CA decision was in evidence at all at trial. The reasons treat the statistic as being in evidence. Nothing at all is said about how that issue was decided. We don't now why both the SCC majority and dissent agreed it was in evidence. That issue also isn't dealt with in the Quebec CA reasons.
8. If the statistic was not in evidence (a) the plaintiff could never have won on the remaining evidence under the SCC majority analysis since (b) the appeal was allowed on a factual matrix which had the statistic as evidence.
AND
9. Given the analyses used by the SCC majority and dissent, the dissent might also might also have dismissed the case if the statistic was not in evidence. Or it might not. We can't tell. There is nothing that allow a valid conclusion as to how likely that result might have been.
This ambiguity in the dissent exists for at least the following reason. The dissent contains what could be be understood as an assertion that there was other evidence sufficient even without the key statistic: see [127]--[131] particularly [127]. However, the relevant passage in [127] is equally understood to mean that the statistic was significant because it confirmed the meaning of the other evidence. So, it's speculation what the dissenters decision would be under the scenario where the statistic was not in evidence. Perhaps the confirmation provided by the statistic was what made all of the evidence a sufficient basis for inferring caussation.
10. The situation outlined above might make some of us wonder why the the SCC reasons are silent on the evidence issue. I assume the majority reasons are silent at least because the status didn't matter in the majority analysis. The majority dismissed the action, essentially then on the plaintiff's best case.
11. However, I would have expected the dissenting opinion to deal with the issue, even if only in passing, since use is made of the statistic and given the statistic was central to the Quebec CA decision.
12. The nonsensical common law common sense cant still rules in Ottawa and seems to have infected at least two of the civilian judges on the SCC;
13. In Canada, apparently, "substantial connection" is a homonym for the meaning of "necessary" in the but-for test;
14. In Canada, it seems to be the law that group statistics on causation, sometimes referred to as "naked statistics" are not sufficient, in the absence of other evidence - hence term naked - to support a conclusion of factual causation on the balance of probability in the particular case;
15. Currently in the SCC, when the majority and dissent in a case involving a factual causation issue decide to each borrow from the scholarship of Mr. Justice Russell Brown, in reasons which he is not the author but is part of one group or the other, we may find the borrowing has occurred without formal attribution in a way that we wouldn't countenance in the academy. (Big peckers can set their own rules, eh?) Enjoy explaining that one to your students.
16. This was not one of the Court's finest moments, or better displays of scholarship, given the result of the case and the amount involved, regardless of whether one agrees or not with the end result;
17. Apart from that, the case has very little else that should be discussed on this List,
I will be pleased to continue this discussion off list if anyone cares.
Cheers,
David Cheifetz
MSt Legal Research candidate
University of Oxford, Faculty of Law
On Tue, 15 Nov 2016 at 12:40, Jason W Neyers <jneyers@uwo.ca> wrote: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)
\image001.jpg){kind=link}