Archive for the ‘Burden of Proof’ Category

Wrong Legal Test on Causation? Meh, Close Enough

January 7, 2014

Canadian courts grapple with difficult legal, factual and evidentiary issues daily. Judging is difficult, but that’s why judges are paid the big bucks.

Mistakes happen. Canadian appellate courts usually deal with harmless error ( usually an evidentiary ruling by a trial judge that, while mistaken, does not meet the standard of reversible error on appeal, or to warrant a new trial) in the context of criminal trials.

But what happens when a trial judge applies the wrong legal test on causation?

The Court of Appeal for Ontario says: “Meh, close enough”:

[1]          The trial judge concluded on the law, that the appellants’ could not meet the “but for” test for causation and that, in the circumstances, he would apply the “material contribution test”.  In view of the Supreme Court of Canada’s decision in Clements (which decision was not available to the trial judge when he rendered his decision), this was an error and the material contribution test does not apply here.  However, we are of the view that the material contribution test is a more lenient test and if the trial judge applied it, he still found the appellants did not meet that test and failed to prove their case on a balance of probabilities.  In spite of what the trial judge said about his application of that test, a fair reading of his reasons would suggest that his very thorough analysis looks very much like the application of the “but for” test.  He concluded that while a number of factors could have caused the problems experienced by the appellants. The only one proved on a balance of probabilities was inadequate labour.

Reference: Cowan v. Hydro One Networks Inc.2014 ONCA 6

See also my previous posts:

Jumping Through the Jurisdictional Hula Hoop: Ruloff Capital Corporation v. Hula (BCSC)

March 11, 2013
Balancing a guitar & hula hoop at the Pike Pla...

Balancing a guitar & hula hoop at the Pike Place market in Seattle (Photo credit: Wikipedia)

The recent BC Supreme Court decision in Ruloff Capital Corporation v. Hula, 2013 BCSC 322 (CanLII) poses the following question on forum non conveniens and parallel proceedings:

[65]        Does a finding that one party can acquire representation in another jurisdiction, coupled with the fact that the other jurisdiction, for reasons not articulated, has accepted jurisdiction over the parties, trump the objective in Teck to ensure the action is tried in the jurisdiction that has the closest connection to it? (more…)

The discovery principle and limitation of actions for solicitor’s negligence:Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors (Ont. C.A)

December 4, 2012

Today’s decision of the Court of Appeal for Ontario in Ferrara v. Lorenzetti, Wolfe Barristers and Solicitors, 2012 ONCA 851 deals with the discoverability principle and limitation of actions for solicitor’s negligence. (more…)

Incorrect Shifting of the Burden of Proof in Negligence Cases

October 5, 2011

Today’s judgment of the Court of Appeal for Ontario in Donley Investments Limited v. Canril Corporation, 2011 ONCA 625  reinforces the principle that the burden of proof in negligence cases remains with the plaintiff.

The defendants appealed the  judgment of Justice Monique Métivier of the Superior Court of Justice, following a 7 day trial, holding the defendants liable in negligence and nuisance for water damage caused to the basement of the plaintiff’s building. The plaintiff alleged that its basement suffered damage as a result of water flowing from the neighbouring property owned by the defendants.

The Court of Appeal concluded that the trial judge erred both in law and set aside the trial judgment and ordered a new trial based upon three significant legal errors.

First, the trial judge incorrectly shifted the burden of proof:

[5]              In our view there was nothing in the facts of this case that would justify shifting the burden of proof or finding what the trial judge described as a “presumption of negligence”: see Fontaine v. British Columbia (Office Administrator), [1998] 1 S.C.R. 424.

[6]              The respondent did not provide compelling evidence to demonstrate that the water had migrated from the appellants’ building to its own. Nor was there strong evidence of fault on the part of the appellants. We take the trial judge at her word that this was a case that turned on the burden of proof. By improperly shifting that burden and finding against the appellants on the basis that they had not rebutted a presumption of fault, the trial judge made a significant error of law.

Second, the trial judge improperly imposed a duty to assert a claim on behalf of the defendants/respondents against the city:

[9]              The appellants made a claim against the city for the damage to their basement and suggested to the respondent that it do the same. The respondent refused to do so. The trial judge found, at para. 108, that the appellants “had a duty to their neighbours to join them in [their] claim to ensure they could recover from the City for the damages caused by the open water main”. The trial judge held that this omission was “actionable on the basis of negligence.”  In the result, despite finding that the appellants had not negligently caused the damage to the respondent’s basement in February 2003, the trial judge, by way of this alleged duty, nonetheless, held the appellants liable in negligence to the respondent for the damage caused.

[10]         We fail to see how the appellants could have asserted a claim on behalf of the respondent. Nor do we see any legal basis for the trial judge’s imposition of a duty to assert such a claim. This error is fatal to any finding against the appellants with respect to the February 2003 infiltration.

Finally, the trial judge employed faulty causation analysis:

[11]         The trial judge erred in her causation analysis. In her reasons for judgment, she recognized that the evidence establishing a causal link between the damage to the respondent’s building and any fault or wrong committed by the appellants was not strong and certainly was not made out on the basis of expert or scientific evidence. In her analysis of the applicable law, the trial judge did not refer to the standard “but for” test for causation. Rather, she held, citing Athey v. Leonati, [1996] 3 S.C.R. 458, that causation could be established on the basis of material contribution to the occurrence of the injury that was greater than de minimis. In our view, the facts of this case do not justify deviating from the standard “but for” test for causation: Resurfice Corp. v. Henke, 2007 SCC 7, [2007] 1 S.C.R. 333. It follows that the trial judge erred in law by applying a more lenient test.

[12]         While all three errors specifically concern the trial judge’s finding of liability on the basis of negligence, we do not agree with the submission that the judgment can be sustained on the basis of nuisance alone. The trial judge expressly excluded liability for nuisance with respect to the most significant infiltration of water that occurred in late February 2003 for which the city was responsible.  We are unable to conclude that all of the damage to the respondent’s building resulted from the post-February 2003 infiltration or that none of it resulted from the February 2003 infiltration. Moreover, the judgment does not specify what quantum of damages flowed from each infiltration, and indeed, on the record before us, we are not persuaded that it would be possible to do so. As it is impossible to assign a specific quantum of damages to either the February 2003 negligence claim or to the post-February 2003 nuisance claim, the trial judge’s legal errors with respect to negligence are fatal.

Whether or not the Supreme Court of Canada will clarify the persistent analytical confusion between the “but-for” test and “material contribution” test remains to be seen. See my previous post: Clear as Mud: The Supreme Court of Canada to Clarify the Law of Causation

Zamir and Ritov on “Loss Aversion, Omission Bias, and the Burden of Proof in Civil Litigation”

June 24, 2011

Eyal Zamir (Hebrew University of Jerusalem – Faculty of Law)

and  Ilana Ritov (Hebrew University of Jerusalem – School of Education)

have posted “Loss Aversion, Omission Bias, and the Burden of Proof in Civil Litigation”. Here’s the abstract:

The basic rule in civil litigation is that the plaintiff carries the burden of proof and the general standard of proof is preponderance of the evidence. The plaintiff prevails if she establishes her case with a probability exceeding 0.5. Drawing on insights from behavioral economics and new experimental findings, this paper makes the following arguments: 1. Since litigants tend to take the status quo as the pertinent reference point, erroneous dismissal of a claim is likely to be perceived as denying the plaintiff deserved gains, and erroneous acceptance of a claim perceived as inflicting undeserved losses on the defendant. Loss aversion thus provides a powerful justification for placing the burden of proof on the plaintiff; 2. Ceteris paribus, inasmuch as the law strives to minimize the total costs of erroneous judicial decisions, loss aversion calls for setting the standard of proof considerably higher than 51%; 3. Notwithstanding the formal rule of 51%, behavioral insights and experimental findings lend support to the hypothesis that the actual standard of proof in civil litigation is higher than 51%. This phenomenon is possibly due to factfinders’ omission bias. Burden of proof is not a mere tiebreaker; it sets a reference point and creates a default effect.

A copy of the paper is available for download from SSRN here.

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