When two eminent thinkers on causation weigh in on these cases, it’s hard to know what to add. Tolstoy, it turns out, has come to the rescue. In discussing the causes of the Napeolonic Wars, he provides a philosophical aside:

 

When an apple ripens and falls—what makes it fall? Is it that it is attracted to the ground, is it that the stem withers, is it that the sun has dried it up, that it has grown heavier, that the wind shakes it, that the boy standing underneath wants to eat it? No one thing is the cause. All this is only the coincidence of conditions under which every organic, elemental event of life is accomplished. And the botanist who finds that the apple falls because the cellular tissue degenerates, and so on, will be as right and as wrong as the child who stands underneath and says that the apple fell because he wanted to eat it and prayed for it.

 

Leo Tolstoy, War and Peace, translated by R Pevear and L Volokhnosky (New York: Vintage Classics, 2008) 606.

 

John Kleefeld

Associate Professor, College of Law

University of Saskatchewan

15 Campus Drive

Saskatoon SK  S7N 5A6

 

tel:          (+1) 306.966.1039

email:    john.kleefeld@usask.ca

skype:    johnkleefeld

twitter: @johnkleefeld

web:       http://law.usask.ca/find-people/faculty/kleefeld-john.php

 

Read my most recent article, co-authored with former student Kate Rattray, on editing Wikipedia for law school credit: http://ssrn.com/abstract=2729241.

 

Also, just published—“Concurrent Fault at 90,” my book chapter in Quill & Friel’s Damages and Compensation Culture: http://www.bloomsbury.com/au/damages-and-compensation-culture-9781849467971.

 

And a recent blog post on Slaw: http://www.slaw.ca/2016/11/09/standard-of-review-the-great-passion-of-canadian-law.

 

 

From: David Cheifetz <dcheifetz@gmail.com>
Date: Sunday, November 20, 2016 at 6:16 PM
To: "Wright, Richard" <rwright@kentlaw.iit.edu>
Cc: "obligations@uwo.ca" <obligations@uwo.ca>

Subject: [Spam?] Re: [Spam?] Re: ODG: Benhaim - Causation in the SCC - draft

 

Hello Richard,

 

Sacrificial lambs are good, especially since Passover is months away. I wondered who'd bite focusing on the substantive law differences and not the broader - for lack of a better term, legal envelope similariities

 

1. I agree with you that the cases are significantly different as to the substantive law issues, with Benhaim being the far more complicated and complex certainly regarding the facts involved, and the application of the law to the facts, and probably the meaning of the law involved.

 

2.  Probably the St Jean and Laferriere cases (both SCC, from Quebec) since St Jean relied on Laferriere. I can't now, recall there being a common law decision unless there's a criminal law decision involving statistics and, say, DNA. I suspect there's one in the context of a discussion of the admissibility or weight of that evidence. 

 

3.  Everything in relation to 78% stat if it was not in evidence at all. This link is to the doctors' 2 page leave reply brief which is a succinct summary: http://www.scc-csc.ca/WebDocuments-DocumentsWeb/36291/MM030_Applicant_Albert-Benhaim-et-al_Reply.pdf. Go here http://www.scc-csc.ca/WebDocuments-DocumentsWeb/36291/FM010_Appellants_Albert-Benhaim-et-al.pdf for the drs appeal brief and start at para 65. Go here http://www.scc-csc.ca/WebDocuments-DocumentsWeb/36291/FM020_Respondent_Cathie-St-Germain-et-al.pdf for the plaintiff's appeal brief, put 78 into your document search function and follow the bouncing ball looking for anything from the plaintiff as to how that figure got into evidence rather than assertions about its significance that presume the stat was in evidence.

 

Am I having fun, here, Oh yes, but how could I not?  Trenching a bit, but not too much, I hope, on the patience of our other colleagues on this list who aren't in Oxford there's at least this. It's just as a small sample - no disrespect meant to the others whose classes / lectures I've been allowed to sit in on. I'm going to indent the rest of the response so those who aren't interested will see from the format that I've stopped dealing with the issues in Benhaim.

 

John Gardner on one day (usually with Honore); Les Green on another; regular iterations of the Burrows and Stevens show usually leavened with contributions from others; Collins and Bagshaw with others, the meetings of the Oxford version of ODG  discussion group; other lectures on moral and political philosophy I've attended; the music and museums; the lower heights of the doors in some of the older colleges which allow me to pretend I'm tall because I sometimes almost have to bend to avoid hitting my head; the multiple flavours of English accent; the old books stores everywhere; the grotesques and gargoyles, many of which look remarkably like a certain DT even without having to squint too much; the cows in Christ Church meadow; the view of the Sheldonian over the All Souls parapet; the green grass in November; the remarkable breadth of knowledge and capacity of every one of the graduates I've met so far and the few undergrads I've met; the capacity of the Oxford student and faculty to survive continuous rounds of [something] and DRINKS; the living history all around one whether it's during class or not; all of the faculty and staff I've met so far who seem to enjoy what they're doing, not merely do whatever they're doing because that's their job; with so far only one exception - an All Souls porter - the friendliness and willingness to talk (if they're not swamped by lost visitors and even more lost students) about their college; the unfortunate condition of men's intercollegiate ice hockey: I went to last nights sparsely attended game between Oxford's team and a team called the London Dragons - a team combining students from a number of London universities; the culture and food along Cowley Street; the retired UK pastor I met in a cafeteria over lunch who is studying (as I understood it) the the significance of the reduction in light in the Protestant churches as a result of all of the wonderful mosaic windows; the visiting scholars I've met - one of whom has already become a good friend;   .. I could go on but you get the point.

 

The lone All Souls porter? I thought there was a seminar, there, one morning last week. It's a seminar I've gone to regularly. However, it wasn't scheduled for last week. On my way back out across the interior quads -  the day was warm and blue - I stopped to admire the Sheldonian jutting above All Souls parapet. The porter came out and told me the college was closed to visitors. He wasn't prepared to listen to my explanation of why I was there, that I was a grad student, that I was on my way out, but had stopped to admire the beautiful vista, but insisted I leave immediately and shoo'd me out. I suppose I could have told him I'm now a Codrington Library reader, too, but I doubt that would have made a difference since that doesn't, of course, make one a part of All Souls.

 

My one disappointment of any significance so far? Apart from the lack of good Montreal style bagels, of course and anything approaching any of NYC's or Toronto's delis? It turns out I'm not the oldest grad student in the law faculty's MSt programme. I had to rejig some of my set piece responses for why I was at Oxford.

 

Best wishes,

 

David

 

On 20 November 2016 at 20:10, Wright, Richard <rwright@kentlaw.iit.edu> wrote:

OK, David, although being south of the Canadian border and not even in the English Commonwealth, I'll bite.

 

(1) IMHO, Clements and Benheim are significantly different.  NESS causation existed in Clements, as it did in Hotson, but the courts in each case failed to see this due to the fixation on but-for causation in Canada and England, respectively, and instead got caught up, like many other courts (including those in the USA) in certain types of situation (toxic torts and medical malpractice), in the confusion generated by interpreting the standard of persuasion as merely requiring a statistical probability rather than a minimal belief.  In Benheim, on the other hand, proof of specific causation is inherently impossible using but-for, NESS, or any other test, although many courts and academics believe they can get around this through statistical interpretation of the standard of persuasion or, if the statistic is not 50+%, a "robust adverse inference".

 

(2) Has any SCC opinion prior to Benheim been as explicit in rejecting "naked" statistics (statistics unrelated to any causal generalization) entirely and being extremely cautious regarding statistics attached to causal generalizations? Note, however, that the court in Benheim, while stating that even statistics related to causal generalizations are not sufficient by themselves for proof of specific causation, failed to note that all of the evidence in the case (except for evidence regarding the various x-ray readings) was statistical in nature, and it seemed to assume that if the misdiagnosed cancer was at Stage I causation would be established under the "balance of probability" standard, even though this is true only if a mere statistical probability is sufficient. When will the courts admit inability to prove specific causation in these sorts of cases and instead openly confront whether, as a matter of justice, liability should nevertheless exist based on a probability of causation, with the liability being proportional to the probability of causation? 

 

(3) Which key bit of statistical evidence was perhaps not in evidence?  The causally related statistic that, on average, those diagnosed with Stage III or IV cancer die within 8 to 12 months?  Or the apparently naked (non-causally related) statistic that 78% of "fortuitously discovered" cancers are Stage I?

 

I hope you are having fun in Oxford.

 

- Richard

 

On Fri, Nov 18, 2016 at 12:46 PM, David Cheifetz <dcheifetz@gmail.com> wrote:

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,

 

 

<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)

 

 

 

--

 

 

David