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”:
 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:
- “Clear as Mud: The Supreme Court of Canada to Clarify the Law of Causation” and
- Supreme Court of Canada: “But For” Is The Default Test For Causation in Negligence