Date: Mon, 7 Apr 2008 09:23

From: David Cheifetz

Subject: Canadian Causation Conundrum: Resurfice & Athey

David,

Vaughan Black explicitly detailed the SCC's trend towards converting (whether intentionally or not, but not admitting it if intentionally) the analysis from purportedly factual to "unacknowledgedly" normative in his I-very-much-doubt-most-members-of-the-judiciary-haven't-at-least-heard-about, and if so seem unwilling to deal with, 2002 article "Policyization". Do a CanLII search on "Policyization" and see where it turns up.

Then look at the date of, and panel on, the decision that isn't the SCC decision and compare the relevant passage in the former to Cottrelle. Do you spot an almost incongruity? I'd be astonished if at least one of the panel members didn't.

The use and discussion of risk in Childs is, I think, entirely (or intended to be entirely) at the level of duty. For example, ""A social host at a party where alcohol is served is not under a duty of care to members of the public who may be injured by a guest’s actions, unless the host’s conduct implicates him or her in the creation or exacerbation of the risk": Childs v Desormeaux, 2006 SCC 18 at para 47. I think it's not correct to shift the case (I'm not suggesting you were) into the "legal causation" sphere by suggesting the discussions of risk in Childs should be understood to have been also intended to say anything about proximate cause (remoteness, foreseeability, scope of liability issues) at the causation stage. That they necessarily have to mean something is a separate, and valid, point, if that was your point. If the risk of the particular injury is enough, by itself, or together with something, to create duty, then under what circumstances could that injury ever, logically - which is need not be the same as "policyizationally" (I'm varying a coined word) - not be within the ambit of risk? But, that walks us into the extent of the "specificity of the description of the risk" problem which the SCC so blithely ignored in its statement of the second of its Resurfice material-contribution test criteria.

Anyway, normative principles determine the limits of what may be considered to be a factual cause - the limits of the universe of causal candidates, if you will. That's the Glanville Williams "primeval slime" admonition. Lewis Klar brought the point closer to home (and time) in Tort Law (3d) at p. 391: "there are literally countless causes or events which must have occurred in order for the plaintiff’s injury to have happened and it would be preposterous to suggest that each ought to be investigated as a source of responsibility and compensation for the victim". Within those limits, at least under the but-for test, 1 +1 is still supposed to equal to and only equal 2, Lord Halsbury's dictum in Quinn v Leathem notwithstanding. Some aspects of "legal cause" are factual in the sense that even the average person whose powers of "common sense" reasoning have not been burnished (or should that be diminished?) by advanced legal education would grasp without too much effort. That's the "obvious as the smell of a 5-week-old dead fish analogy". On the other hand, Childs is as good proof as any recent case that Lord Halsbury might well have been right about part of what he wrote.

As to what'll happen in practice? For the most part, plus ça change; that is, cases that would have been decided in favour of the plaintiff with the judge using Athey "material contribution" wording will now be decided in favour of the plaintiff with the astute judge using but-for wording with "caused" or "a cause" replacing the variations of "materially contributed". The recent Dewitt v. Takacs, 2008 BCSC 314 at paras 79-85 is a good example.

As you know, I've attempted, in my "Risk as Legal Causation" paper that I delivered at last week's LSUC 2008 Special Lectures, to provide the practising part of the profession with a way, until somebody in authority (outside of British Columbia, in any event) says something that is useful ex ante, to handle the current uncertainty engendered by Resurfice and the other cases in which the judges have (in my view) declined to be intellectually honest about what they were doing. If the SCC is going to continue to abdicate its responsibilities in this area of private law; the Ontario CA provide practitioners in this province, with remarkable declarations such as

Subsequent to the hearing of this appeal, the Supreme Court of Canada released its decision in Resurfice v. Hanke, (2007) S.C.C. 7. As set out by the Chief Justice in her reasons at para. 20, this decision simply asserted 'the general principles that emerge[d] from the cases'. It did not alter the state of the law on causation.

while seemingly pretending that Ontario is a jurisprudential island; the BCCA provide an ongoing line of decisions which may or may not be consistent but seem to be working towards some sort of principle; and 2 members of the Alberta Court of Appeal seemingly adopt the "if we don't succeed the first time let's try again" approach ... anyway, if the judiciary isn't inclined to clean up a mess of its own making, then it's up to those of us who occasionally try to try to. We owe our clients at least that much.

In the meantime? I'm waiting for another Canadian appellate judge to be as brutally honest about what they occasionally do as was Lord Hoffmann in White v. Chief Constable of South Yorkshire Police, [1998] UKHL 45 - it's the last sentence in the 3rd last paragraph - "Consequently your Lordships are now engaged, not in the bold development of principle, but in a practical attempt, under adverse conditions, to preserve the general perception of the law as system of rules which is fair between one citizen and another". Why did I say "another"? Actually, Southin JA once was, in print, but her co-panelists disavowed her comments. In Reilly v. Lynn 2003 BCCA 49, at para. 92 Southin J.A. (dissenting – the majority specifically disavowed these comments: 2003 BCCA 49, at para. 96), while discussing the scope of appellate power to review lower court findings of fact, wrote: “So far as I am concerned what underlies my raising this point is that I have concluded that justice, in the broad sense, is served more often by getting the facts right than by worrying about what the law is.”

Cheers,
DC

----- Original Message ----
From: David Wingfield  
Sent: Sunday, April 6, 2008 10:24:09 AM
Subject: Re: Canadian Causation Conundrum: Resurfice & Athey

Isn't the answer that the SCC has abandoned (or is in the process of abandoning) cause in fact as the determining factor in negligence law in favour of a standard based on material contribution to the risk of harm (see Childs)? The but-for test is now just a simple way of meeting this standard (like Newtonian physics is a simple way of describing the effects of gravity). When this test doesn't work (like when Newtonian physics doesn't explain physical phenomena) the courts delve deeper into the real basis of cause (like physicists who employ quantum mechanics).

This is because cause is a legal not a factual matter. Legal principles - informed by policy and moral considerations - not physical or scientific principles tell us which historical events are relevant for the attribution of responsibility for harm.

Therefore engaging in an analysis of when the but-for test doesn't permit the courts to attribute responsibility for harm doesn't get us very far in explaining when the courts are able to do this. Again, it's a bit like having a bunch Newtonian physicists trying to disregard quantum mechanics because it can't be explained by Newtonian calculations. It is precisely because Newtonian principles can't explain the quantum world that different - and more fundamental - principles have to be used.

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