Causation of Harm
Author | David A. Potts; Erin Stoik |
Pages | 273-278 |
273
26
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 sucient. 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
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