Archive for the ‘negligence’ 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:

Ontario Court Assumes Jurisdiction Over Foreign Issuer in Securities Class Action

October 24, 2013

In Kaynes v. BP, 2013 ONSC 5802 (CanLII), (“Kaynes“), Mr. Kaynes, the plaintiff, commenced a proposed class action against BP, the well-known multinational oil and gas company, headquartered in the United Kingdom and registered on the London, New York and Toronto Stock Exchanges.  Kaynes alleged that BP made various misrepresentations in its investor documents before and after the Deepwater Horizon oil spill in the Gulf of Mexico in April 2010 (the “Oil Spill”).  He sought leave to bring a statutory action for secondary market misrepresentation under Part XXIII.I of the Securities Act, R.S.O. 1990, c. S.5, and an alternative claim for common law negligent misrepresentation.

 A parallel class action was commenced in the United States (In BP plc Securities Litigation,  United States District Court for the Southern District of Texas, Case No. 4:10-md-02185) brought on behalf of a proposed class consisting of all purchasers of ADS over the NYSE between November 8, 2007 and May 28, 2010. Kaynes seeks to represent a class of Canadian residents who purchased BP shares between May 9, 2007 and May 28, 2010 and includes all Canadians who purchased common shares and ADS, whether on the TSX, NYSE or European exchanges;  excluding any Canadian residents who purchased BP shares over the NYSE and who do not opt-out of the U.S. Proceeding.

BP brought a jurisdiction motion in advance of the leave and certification motions, seeking an order staying this proceeding (in part) based on lack of subject-matter jurisdiction, or, alternatively, on the basis of forum non conveniens.
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Supreme Court of Canada: “But For” Is The Default Test For Causation in Negligence

June 29, 2012

In a previous post entitled: “Clear as Mud: The Supreme Court of Canada to Clarify the Law of Causation“, I noted the Supreme Court of Canada’s latest opportunity to clarify the law of causation following the BC Court of Appeal decision in Clements v. Clements. The analytical confusion stemmed from the conflicting application of “but-for” test and “material contribution” test by various trial and appellate courts, following the Supreme Court of Canada’s decisions in Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, [2010] 1 S.C.R. 132 and Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333.

David Cheifetz over at slaw.ca valiantly attempted to sort out this mess before the Supreme Court of Canada released its decision today. Frankly, my head hurts after reading his post.

Anywho, here’s a link to the Supreme Court of Canada’s decision released this morning: Clements v. Clements, 2012 SCC 32 (S.C.C.).

The majority opinion written by the Chief Justice (Deschamps, Fish, Abella, Cromwell, Moldaver and Karakatsanis JJ concurring; LeBel and Rothstein JJ. dissenting), is summarized as follows:

[46] The foregoing discussion leads me to the following conclusions as to the present state of the law in Canada:

(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.

(2) Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.

In other words: The “but for” test is the default test for causation in negligence, “but for” [pun intended] multiple tort-feasors, when, exceptionally, the “material contribution” test otherwise applies.

Dr. Eric Descheemaeker on “Protecting Reputation: Defamation and Negligence”

February 29, 2012

Dr. Eric Descheemaeker(University of Edinburgh – School of Law) has published “Protecting Reputation: Defamation and Negligence” Edinburgh School of Law Research Paper No. 2012/8. The abstract reads:

The present article concerns itself with the relationship between defamation and negligence in the protection of the interest in reputation. The bijection between defamation and reputation is typically thought of as perfect: defamation only protects reputation, while reputation is only protected by defamation. This article shows, however, that neither limb of the proposition is true; furthermore, there is no principled ground why they should be. In particular, there is no reason why the tort of negligence could not prima facie extend the scope of its protection to reputation. It might seem that the fact that negligence, as a tort, requires by construction culpa, whereas defamation appears to rely on either more or less than that as a standard of liability, would prove an insuperable stumbling-block in the way of this suggestion. The hurdle, however, is not nearly as formidable as it might appear at first, because, as this article documents, negligence has for more than a century been acting as a magnet on the law of defamation, surreptitiously bringing its standard of liability increasingly close to negligence-culpa.

Download a copy of the article via SSRN here.


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