Date: Tue, 27 May 2008 20:14

From: David Cheifetz

Subject: The refreshing SCC

Three points:

1. Dealing first with Michael Jones' comment that the SCC didn't adequately deal with factual causation (putting aside the [ahem] reasonable suspicion that the last thing they wanted to do was go anywhere near factual causation] - para 11 is either telling or puzzling.

[11] The fourth and final question to address in a negligence claim is whether the defendant’s breach caused the plaintiff’s harm in fact and in law. The evidence before the trial judge establishes that the defendant’s breach of its duty of care in fact caused Mr. Mustapha’s psychiatric injury. We are not asked to revisit this conclusion. The remaining question is whether that breach also caused the plaintiff’s damages in law or whether they are too remote to warrant recovery.

It's the juxtaposition of the 2nd and 3rd sentences. If they were not asked to revisit the factual causation decision and they didn't think there was any problem with the trial decision why even say they were not asked to revisit it. What's the purpose of that statement. Perhaps I'm overly careful but it's the sort of statement that, in context, since they raised the issue themselves, begs for a "and we see no reversible error" statement.

2. It's a fairly easy guess at what they might have been hinting at in the "we were not asked" sentence. It's what was the proper test for factual causation and was the factual causation decision right under that test.

The trial judge used "material contribution". There's no but-for analysis. There's no discussion in the trial reasons setting out why the trial judge thought the but-for test was "unworkable" in Athey terms (whatever "unworkable" meant - the trial decision is pre-Resurfice). The trial judge wrote. "I accept the diagnosis of the experts called by the plaintiffs, and accept that the fly in the bottle was a contributing cause of the resulting psychological illness of Mr. Mustapha" (para. 212). Later (223), he wrote: "Here, as the fly in the bottle was the triggering factor, there is no doubt that it materially contributed to the plaintiff’s problems. Indeed, although there were pre-existing stressors, and certainly subsequent stressors, it could well be argued that “but for” the fly in the bottle, and the directly resulting thoughts by Mr. Mustapha of possible impurities in all of the bottles of water previously consumed, and therefore possible damage to the health of his family members, his subsequent psychological problems would not have occurred. Certainly the contribution of the fly in the bottle was well outside of the de minimis range."

The appeal was argued and decided in 2006, before Resurfice. Culligan didn't contest the causation issue: "Culligan does not contest the finding that the fly-in-the-bottle incident was a contributing cause of Mr. Mustapha’s resulting illness" (2006 CanLII 41807 at para 12).

The appeal was argued in March 2008. The applicable law is now Resurfice. The law changed after the Ontario CA decision. Resurfice is February 2007. Leave to appeal was granted to Culligan in June 2007. That means it was open to Culligan to argue factual causation, that the but-for test applied, that the evidence didn't permit a but-for conclusion. In Resurfice terms, it certainly was not "impossible for Mustapha for factors beyond his control" to use the but-for test to establish factual causation. However, there's no indication that factual causation was ever before the Court. The SCC summary of the issues after the leave application was granted is

Torts - Negligence - Duty of care - Psychiatric harm - Plaintiff saw dead flies in unopened bottle of drinking water - Plaintiff suffered severe psychiatric harm as a result of seeing flies in water - Whether company supplying water had a duty of care to plaintiff - Whether psychiatric harm was foreseeable - Whether the test for foreseeability of psychiatric harm in tort is distinct from the test for foreseeability of physical harm - Whether a duty exists only to the psychologically robust - Whether the type and extent of harm must be reasonably foreseeable - Whether the Court of Appeal erred by focusing on the nature of the injury rather than the nature of the malfeasance when assessing the duty of care.

Was the SCC really asking whether the decision have been supported as a but-for decision?

3. Putting my practitioner's hat on. We practitioners have to assume that the SCC did not intend to pronounce on any issue of law it did not expressly deal with and that it did not intend to change any aspect of the law that it did say was changing. However, some of you have pointed out that aspects of the SCC's decision are necessarily inconsistent with prior law. One answer to that conundrum is to assume that the SCC considered those issues and would not agree with you. There are other answers, of course.

Cheers,
DC

----- Original Message ----
From: Robert Stevens   
To: Lewis KLAR; Jason Neyers  
Sent: Tuesday, May 27, 2008 12:54:53 PM
Subject: RE: the refreshing SCC

Lewis Klar wrote:

In terms of breach, if one accepts the Wagon Mound No 2 reasoning, that in determining reasonable foreseeability for remoteness purposes, one considers probability of injury, costs of avoidance and severity (i.e. Learned Hand), then one eliminates the issue of remoteness and deals with everything under breach. Once one determines that the defendant was negligent, one also resolves the issue of remoteness, if this approach is followed.

I don't accept that.

Firstly one does not have to accept Learned Hand's test (I don't - I think it is nonsense) in order to accept, what is surely uncontroversial, that factors such as the severity of potential injury and the costs of avoidance, are relevant to the degree of likelihood with which the injury must have been reasonably foreseeable in order to establish a breach of duty with respect to the plaintiff. Secondly once breach of duty has been established, a separate issue of the scope of liability for losses must also frequently be answered. So, in the Wagon Mound (No 1) or Re Polemis there was no doubt at all that the defendant had breached its duty with respect to the plaintiff, the issue was one of the scope of liability for wrongdoing, not whether there was a wrong at all. You cannot roll the remoteness question into the breach question so that it disappears. We see exactly the same division where the wrong is breach of contract.

Put another way, we need to separate out the question (i) did the defendant commit a wrong with respect to the plaintiff; from (ii) are the losses consequent upon the wrong too remote?

Mustapha concerned (i) not (ii).

Put yet another way, remoteness is about the scope of liability for wrongdoing, not the scope of liability for conduct.

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