Dear Colleagues,

I'd say that those of you who are interested in causation shouldn't bother with the case unless you have a particular reason to track what the Supreme Court of Canada says, from time to time, the law is in Canada. 

If you don't have such a need, you're wasting your time unless you're looking at the the result from an old-school American realist approach and trying to figure out why the SCC judges chose the particular arguments they chose to produce the result they thought was the correct result on the facts.

But, if you feel compelled, for whatever reason, to read the case, I strongly recommend that you read the majority reasons of the Quebec Court of Appeal, first. They're in English so that's not an issue for anyone who doesn't have adequate fluency in French. 

One reason I make that suggestion is that what you'll never (remarkably) get from the SCC reasons is that one of the key issues in contention before the SCC was whether a key bit of evidence - indeed, probably the key bit of evidence upon which the Que CA relied and the SCC dissent relied - was ever, in fact, in evidence at all. The trial judge dismissed the case even though she appears to have treated that fact as being in evidence. The Que CA, majority - whatever else they said: I'd argue strongly that the DID NOT say about Snell what the SCC majority asserts they said - treated this bit of data (the 78% statistic)as being properly in evidence. 

When you read the SCC reasons, you'll see that both majority and dissent treated the data as being properly in evidence without ever explaining why.

Beyond that?

1.  The majority reasons continue the vacuous SCC version of the common sense can't;

2.  The inexplicable SCC assertions, usually in the context of the common sense cant, that the but-for test for factual causation requires a "substantial connection" between fault nd injury without ever explaining whether "substantial connection is offered as a homonym, nothing more, for "necessary" or means something more or less than "necessary";

3. And a not helpful exchange between majority and dissent of the significance of "naked statistics" - Richard Wright is cited and quoted on this point by the majority - in the context of the majority's conclusion that group derived statistical conclusions about causation aren't by themselves determinative of individual causation questions. One needs something more. Those of you familiar with now SCC Justice Russ Brown's recent work on the use of statistics in support of findings of factual causation may recognize passages in each of the majority and minority reasons. Each went to a different paper. (But didn't cite him, and he didn't complain.)

4.  If this case stands for anything in the common law of Canada, it's that the so called Snell adverse inference isn't mandatory. But, then, I'm not aware of any mainstream lawyer or judge (actually, I'm not aware of any) who ever claimed it was a mandatory inverse. Of course, whether that's what it sometimes seemed that some judges necessarily did is a different question.

5.  But, Benhaim says what it says and Canadian lawyers and judges are not going to have to deal with the plain English meaning of what the majority reasons assert. Or argue that the SCC couldn't possibly have meant to mean X, or Y because ....

 

Best wishes

David Cheifetz

Oxford

On 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,

 

 

<image001.jpg>

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)