Forgetting the Audience: The SCC and Private Law
This board has two threads, now dormant, discussing Resurfice v Hanke, 2007 SCC 7 [Resurfice]. The threads are found here and here. There is a very important phrase in the first of the thread titles: Forgetting The Audience. Given that I seem to be talking to myself, let us bring this discussion about the consequences of Resurfice to an end, focusing on the consequences to the audience.
Who is that audience? It is the Canadian public. In light of the current cases, the only safe summary practitioners can give their clients is: “you pays your money (to us), you takes your chances”. This is a good thing (for practitioners), no? It is clearly not for the Canadian public.
The issue is what it means in the Canadian legal universe to say that there’s a relationship between condition X and harm Y such that the law will say that X is a cause of Y, and what the legal tests are for determining the existence of that relationship. This isn’t an academic exercise in court. The issue arises because some person is trying to blame some other person(s) for that harm, usually for the purpose of obtaining money, and usually with the hope there will be enough in the pot for both lawyers and claimant.
I emphasize this point. This post is NOT a discussion of causation, generally. It is about the consequences to the Canadian public of Resurfice. What I show below, by highlighting a few of the cases from the rash of inconsistent decisions out of the lower courts since the release of Resurfice, is that Resurfice is more proof that, in the area of private law, the Supreme Court of Canada (“SCC”) too often seems to have forgotten about, or seems to be indifferent to, one of its major purposes for existing: to bring some certainty in the principles applicable to claims between citizens. Resurfice is not the only recent example. Other examples are Young v Bella, 2006 SCC 3, and Childs v Desormeaux, 2006 SCC 18. It is worth repeating section 3 of the Supreme Court Act, RSC 1985, c S-26:
“The court of law and equity in and for Canada now existing under the name of the Supreme Court of Canada is hereby continued under that name, as a general court of appeal for Canada, and as an additional court for the better administration of the laws of Canada, and shall continue to be a court of record.” (my emphasis)
Anyone really interested in seeing how bad the situation is becoming need only skim through the cases reported on CanLII since Resurfice was released.
We now have another Ontario case to consider. In Rizzi v Macros, 2007 ONCA 350 [Rizzi], Gillese J.A. agreed with Barker v Montfort Hospital, 2007 ONCA 282, that Resurfice did not change existing law; rather, all it did was “clarify”. And, we have at least two British Columbia Court of Appeal decisions, although I will only mention one. I will deal with Ontario first.
As readers will remember, in Resurfice, McLachlin C.J. penned sentences which contain a phrase that is likely to outlive (for the wrong reasons) much of the rest of the court’s jurisprudence. The sentences are:
“Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful to catalogue the various debates.”
The phrase is “Much judicial and academic ink has been spilled … It is neither necessary nor helpful to catalogue the various debates”.
It is time to spill some more of the electronic equivalent, pixels, to show why it is both necessary and helpful to catalogue – even refer to – at least some of the various debates, and why it would have been helpful if the Supreme Court had been just a bit less dismissive. Some might, and have, and will, suggest that the reason the Supreme Court suggested it would not be helpful to catalogue the various judicial debates – meaning, here, at least the existing Supreme Court cases – is that the panel realized that at least some of the cases are inconsistent. Some will also suggest that a reason that the Supreme Court said it would not be helpful to catalogue the academic debates is that they point out the judicial inconsistencies. Apart from that, as I have written before – it is part of footnote 211 to Snark – that “disparaging ‘academic’ causation analyses is not a new judicial sport”. I have also suggested it is about time the judiciary find a new sport.
Even the highest of appellate judges are fallible: see, Rt. Hon. Lord Hope of Craighead “Decision Overruled” – Facing up to Judicial Fallibility” (2003), 14 King’s College Law Journal 121; see, also, McMullin J.A., “Judicial Fallibility and The Appellate Process”,  Law Lectures for Practitioners, p. xvii. On a different issue, but the point is appropriate, the Alberta Court of Appeal wrote in R v Kusk, 1999 ABCA 49, at para. 13 :
“To a person untrained in law and evidence, these false trains of reasoning are highly meretricious. Once that poison is injected into his or her brain, there is probably no antidote. They even lure some with training.”
The Alberta Court of Appeal was, of course, speaking about counsel.
So, first, let us consider the meaning of “clarify” – defined by the Canadian Oxford Dictionary (self-described as “the foremost authority on current Canadian English”) – a p. 263: “1 … make or become clearer … 2 make transparent … purify…”
In Rizzi at para 19, Gillese J.A. wrote:
 . . . Although Resurfice did not change the law of causation, it did clarify the law. The history of Resurfice demonstrates that there was confusion in this area following Athey v. Leonati . . . This court’s decision in Barker reinforces my view.
Since this subject is dry, let us digress for a moment. I did not know that it is now Ontario jurisprudence that two wrongs make a right. There is explicit judicial authority that they do not. In Gu v. Tai Foong International Ltd.,  OJ No 264 (QL) at para 35, the Court Appeal wrote: [v]iewed from one perspective, there is an element of “two wrongs do not make a right” in what transpired late in the trial. There is now good Ontario law that recidivism is irrelevant. In R. v. J.R.R.,  OJ No 3468 at para. 64 (Gen. Div.) we find: “I have decided that the community cannot take another chance with Mr. J.R.R. Six wrongs do not make a right.” The first reported usage I could find in Ontario case law was in 1908 by Falconbridge C.J.K.B in Loughead v. Collingwood Shipbuilding Co.,  O.J. No. 101, 16 O.L.R. 64 (Div. Ct.).
Getting back to the use of “clarify”, in Resurfice, McLachlin C.J. did not seem to think that there was all that much confusion “in this area” – meaning the area of factual causation. She summarized the area in eight brief paragraphs (paras. 20-28) introduced by sentences which I wonder if the Supreme Court now regrets including. “Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful to catalogue the various debates. It suffices at this juncture to simply assert the general principles that emerge from the cases.”
It seems to me that it is a rather unusual use of “clarify” where what the second case asserts the first case said is literally the exact opposite of the plain meaning of the English words used in the first case.
 I would add that there is an important difference between drawing an inference as to causation from circumstantial evidence, which is often done, and drawing an inference as to causation from no relevant evidence at all, which may be done only in the rare circumstances set out above. This is the difference alluded to by Lambert J.A. in Haag when he distinguished between a logical inference and a legal one; the legal reference (sic) should not be resorted to unless the logical inference is impossible to establish with either direct or circumstantial evidence.
It is worth repeating what you have just read. In British Columbia law, there is a difference between a logical inference and a legal inference and the latter can be made in the absence of any relevant evidence whatsoever. Shades of Quinn v. Leathem,  A.C. 495 at 506 (H.L.):
a case is only authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.
Those of you who have been following the discussion may remember that I suggested, earlier, that Haag v Marshall (1989), 61 D.L.R. (4th) 371,  1 W.W.R. 361 (B.C.C.A.), is the source of the Resurfice material-contribution pronouncements.
On that note, some of us will recall this famous passage from a famous book, or at least parts of the passage and the book. The quotation comes from c. VI of Through The Looking Glass by Lewis Carroll.
‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.’
‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all.’
In Ontario, the profession has now been told that Resurfice did not change causation law, only clarified it. In British Columbia, the profession has been told a number of things, many of them inconsistent, some of them startling, at least one of which is that Resurfice did change the law.
It would have been better if the Ontario profession had been told, more clearly, what that law was that had not been changed. I showed in “The Snell Inference And Material Contribution: Defining The Indefinable And Hunting The Causative Snark – A Not Excessively Subtle and Theoretical Examination of Proof of Factual Causation in Canadian Tort Law” (2005) 30 Adv. Q. 1 that there was no clarity at all to the law as it existed before Resurfice. There is no need for the judiciary to agree with me. I do not work for a “big firm”; I am not a professor; I am short a few degrees; and, last I checked, I am not a judge. However, any number of noted names in the Canadian tort firmament have expressed variations of the same mantra. I suppose it is possible that we are all wrong. On the other hand, it is just possible that some of us are right. It is just possible that there is a good reason for the spilling of all of that ink that McLachlin C.J. thought she did not have to catalogue. Perhaps all that ink was spilled because the jurisprudence simply does not make sense.
In that vein, since my last contest went down like the proverbial lead zeppelin, let us try another one. I will buy supper, at Morton’s (in Toronto) for the lawyer (or judge) and companion who can identify the Canadian cases (or even Commonwealth cases) that were valid authorities, before Resurfice, from which McLachlin C.J. drew the general principles that resulted in paragraph 25 of Resurfice. Feel free to speak as broadly as you feel necessary. Borrowing from the “Spice Girls” I really really really wanna know.
A number of judges who work in British Columbia (and Alberta, although I have not mentioned Alberta cases in this discussion) have now concluded Resurfice did change the law, at least on the issue of the meaning of material contribution. Somebody is wrong among the judges of British Columbia, Alberta, and Ontario. You would never know this conflict exists from the reasons in Barker and Rizzi. Last I checked, the only provinces in Canada that are islands are Prince Edward Island and Newfoundland. It is almost worth wondering whether Barker and Rizzi are examples of Wilson v. Bobbie, 2006 ABQB 22 at para. 42: “Since neither counsel cited the binding decisions of the Court of Appeal (or indeed, any authority at all) … .”
One of the advantages of having written about this area is that I have a library of material I can readily quote from. What you are about to read comes from the conclusion to Snark, 30 Adv. Q. at pp. 102-103.
The current debate about the meaning of factual cause, both inside and outside of law, shows that trying to pin down the judicial concept of factual cause is akin to capturing Carroll’s Snark. … The result is the current state of the jurisprudence, where clarity, predictability and ease of use are not defining characteristics; the content of the material contribution doctrine has all of the substance of gossamer or the lace tatted by Carroll’s Beaver; and a thimble is all we need to contain it.
450. Carroll wrote in The Hunting of the Snark: “They sought it with thimbles, they sought it with care; / They pursued it with forks and hope.”
453. “There was also a Beaver, that paced on the deck, / Or would sit making lace in the bow”: Carroll, The Hunting of the Snark, Fit the First; see, also, Fit the Fourth, Fit the Sixth.
454. The thimble may be slightly larger in Alberta, British Columbia, Manitoba, Newfoundland and Ontario.
The thimble isn’t getting bigger.
Bennett Best Burn LLP