Causation of Harm

• Author: David A. Potts; Erin Stoik
• Pages: 273-278

273

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Causation of Harm

The next question in the harm analysis depends on whether that harm was

suf‌fered as a result of the defendant’s expression.

The plaintif‌f only needs to provide evidence for the motion judge to draw

an inference of likelihood in respect of the existence of the harm and the

relevant causal link.

1704604 Ontario Ltd v Pointes Protection Association, 2020 SCC 22 at paras 71 and 72:

[71] This does not mean that the harm pleaded by the plaintif‌f should be taken

at face value or that bald assertions are sucient. But I would not go so far as

to require a fully developed damages brief, nor would I require that the harm

be monetized, as the question here relates to the existence of harm, not its

quantif‌ication. The statutory language employed in s. 137.1(4)(b) is “harm likely

to”, which modif‌ies both “be” and “have been”; this indicates that the plain-

tif‌f need not prove harm or causation, but must simply provide evidence

for the motion judge to draw an inference of likelihood in respect of the

existence of the harm and the relevant causal link. The evidentiary burden

might depend on the nature of the substantive law that is applied, although

it must be borne in mind that a s. 137.1 motion is not an adjudication on the

merits: for example, in a defamation action, harm (and therefore general dam-

ages) is presumed, but the plaintif‌f would still have to support a claim for

special damages. Importantly, though, no def‌initive determination of harm

or causation is required.

Evidence of a causal link will be especially important where there may

be sources other than the defendant’s expression that may have caused the

plaintif‌f harm.

[72] I add that, naturally, evidence of a causal link between the expression and

the harm will be especially important where there may be sources other than