Dear Colleagues,

I had hoped that one of the Canadian law teachers, or lawyers, on this list would respond. I'll explain one basic reason.

I expect that most of the readers of this list believe in the rule of law and that that rule contains some version of a sub rule to the effect that like cases be treated alike.

Where I'm going with this is that, for present purposes, Benhaim and Clements are more than like cases.They are identical cases with different results that the Court did not attempt to explain at all.

I realize that I often resort to Quinn v Leathem to make light of that sub rule, but this is not one of those instances.

Had anybody responded to me, I'd have asked - and I concede that perhaps I should have included this in my initial message: in what relevant what is Benhaim different from Clements, so that an the problem at trial in Clements in the application of the law to rather (in my view) simple facts that required only 1 expert to testify (called only by the defence) justified the rejection of the trial judge's opinion and an order for a new trial but the problem in Benhaim with far more complicated facts and multiple experts on the causation issues - bearing in mind the reason why the experts are allowed to provide opinion evidence and bearing in mind the trial judge had the opportunity to see and hear the expert (the soft variables the SCC couldn't take into account) justified the affirmation of the trial judgment and the dismissal of the action.

One might add these additional facts that suggest strongly that the Court should have explained the difference: where the difference between the majority and dissent was on the interpretation to be given to the evidence of the experts, the inference to be drawn, the difference in the SCC was 1 judge, and if we do the entire judge count - reading the Que CA judgment for what K&B actually said, 5 of the nine judges who heard the case from trial to SCC thought the plaintiff's had satisfied the burden?

I remind those of us familiar with Canadian law how the majority reasons in Clements, written by McLachliln CJ conclude in para 53:

"We can not be certain what the trial judge would have concluded had he not made the errors I earlier described. All that can be said is that the parties did not receive a trial based on correct legal principles. In my view, the appropriate remedy in these circumstances is an order for a new trial."

I wonder what answer any of you care to give to what the difference was? Why those judges who sat on the majority in Clements and were on the majority in Benhaim seem, to me, to have reversed their position?

I wonder what answers those of you who teach any course in Canada that contains some reference to the rule of law, that like cases be treated alike, that judges have a duty, too, not to act in a way that reduces respect for the administration of justice, might expect to get from your students if you asked them what they though the difference was.

I don't see one, not the least because of the alleged errors made by the trial judge in her review of the evidence and the 4-3 split of the judges on the evidence.. For what it's worth, I find the fact that both Justice Brown & Justice Abella were on the same side regarding the meaning of the evidence a compelling reason to accept their view and the majority's unexplained willingness to twist the text of the K & B reasons damning if one asks whose analysis I prefer.

But that's not my point. I'm not arguing that the dissent was right (here). My point is that, with all due respect to the majority, we are not able to say that justice was done between the parties by the dismissal of the action, based on what is in the SCC reasons.

That's totally aside from the fact that the majority has continued the Canadian pattern of great leaps backward in the coherency of Canadian common law causation every 5 or so years.That carelessness - and we have to assume it is carelessness nothing more - is yet another reason to distrust the majority's conclusion.-

Best regards,

David Cheifez

On Tue, 15 Nov 2016 at 15:42, David Cheifetz <david.cheifetz@law.ox.ac.uk> wrote:

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,

 

 

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