Clements v. Clements, (2012) 431 N.R. 198 (SCC)

JudgeMcLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.
CourtSupreme Court (Canada)
Case DateFebruary 17, 2012
JurisdictionCanada (Federal)
Citations(2012), 431 N.R. 198 (SCC);2012 SCC 32;31 BCLR (5th) 1;[2012] SCJ No 32 (QL);[2012] EXP 2458;215 ACWS (3d) 1035;[2012] 2 SCR 181;29 MVR (6th) 1;346 DLR (4th) 577;331 BCAC 1;93 CCLT (3d) 1;[2012] 7 WWR 217;431 NR 198;JE 2012-1292

Clements v. Clements (2012), 431 N.R. 198 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2012] N.R. TBEd. JN.031

Joan Clements, by her Litigation Guardian, Donna Jardine (appellant) v. Joseph Clements (respondent) and Attorney General of British Columbia (intervener)

(34100; 2012 SCC 32; 2012 CSC 32)

Indexed As: Clements v. Clements

Supreme Court of Canada

McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ.

June 29, 2012.

Summary:

Joan Clements was riding on the passenger seat on a motorcycle being driven by her husband. The weather was wet. The bike was about 100 pounds overloaded. Unbeknownst to Mr. Clements, a nail had punctured the bike's rear tire. Mr. Clements accelerated to at least 120 km/h (in a 100 km/h zone), in order to pass a car. As he crossed the centre line, the nail fell out, the rear tire deflated, and the bike began to wobble. Mr. Clements was unable to bring the bike under control, and it crashed, throwing Mrs. Clements off. She suffered a severe traumatic brain injury. She sued Mr. Clements, claiming that her injury was caused by his negligence in the operation of the bike. Mr. Clements' negligence was not disputed. The only issue was whether his negligence caused Mrs. Clements' injury.

The British Columbia Supreme Court, in a decision reported at [2009] B.C.T.C. Uned. 112; 2009 BCSC 112, found that Mr. Clements' negligence in fact contributed to Mrs. Clements' injury. However, the court held that Mrs. Clements "through no fault of her own is unable to prove that 'but for' the defendant's breaches, she would not have been injured", due to the limitations of the scientific reconstruction evidence. The court applied the "material contribution" test, and found Mr. Clements liable on that basis. Mr. Clements appealed.

The British Columbia Court of Appeal, in a decision reported at 298 B.C.A.C. 56; 505 W.A.C. 56, set aside the judgment against Mr. Clements on the basis that "but for" causation had not been proved and the "material contribution" test did not apply. Mrs. Clements appealed.

The Supreme Court of Canada (LeBel and Rothstein, JJ., dissenting), allowed the appeal and ordered a new trial. A "material contribution" test was not applicable in this case. The Court returned the matter to the trial judge to be dealt with on the correct basis of "but for" causation. LeBel and Rothstein, JJ., found no basis in the trial judge's judgment for inferring that the overloading of the bike and excessive speed could have been the "cause" of the accident in the context of the "but for" test. Nor was it appropriate, on policy grounds, to send the matter back for a new trial.

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - The defendant's negligence in driving an overloaded motorcycle too fast was not disputed - The only issue was whether his negligence caused the plaintiff's injury - The trial judge held that a material contribution approach sufficed - The Court of Appeal held the usual "but for" test applied - The Supreme Court of Canada discussed the basic rule of "but for" causation, and the material contribution to risk approach, and stated 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." - See paragraph 46.

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - The defendant's negligence in driving an overloaded motorcycle too fast was not disputed - The only issue was whether his negligence caused the plaintiff's injury - The trial judge held that a material contribution approach sufficed, having rejected the defendant's expert evidence that the accident would have happened regardless of the excess speed and excess weight - The Court of Appeal held the usual "but for" test applied, and set aside the judgment against the defendant on the basis that "but for" causation had not been proved - The plaintiff appealed - The Supreme Court of Canada allowed the appeal and ordered a new trial - "The trial judge made two errors. The first error was to insist on scientific reconstruction evidence as a necessary condition of finding 'but for causation'. ... The trial judge's second error was to apply a material contribution to risk test. The special conditions that permit resort to a material contribution approach were not present in this case. This is not a case where we know that the loss would not have occurred 'but for' the negligence of two or more possible tortfeasors, but the plaintiff cannot establish on a balance of probabilities which negligent actor or actors caused the injury. ... [T]he trial judge used language tantamount to finding actual 'but for' causation ... We cannot be certain what the trial judge would have concluded had he not made the errors ... [T]he appropriate remedy in these circumstances is an order for a new trial" - See paragraphs 47 to 54.

Cases Noticed:

Wilsher v. Essex Area Health Authority, [1988] A.C. 1074; 87 N.R. 140 (H.L.), refd to. [para. 9].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 9].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 10].

Betts v. Whittingslowe, [1945] HCA 31; 71 C.L.R. 637, refd to. [para. 10].

Bennett v. Minister of Community Welfare, [1992] HCA 27; 176 C.L.R. 408, refd to. [para. 10].

Flounders v. Millar, [2007] NSWCA 238; 49 M.V.R. 53, refd to. [para. 10].

Roads and Traffic Authority v. Royal, [2008] HCA 19; 245 A.L.R. 653, refd to. [para. 10].

MacDonald v. Goertz et al. (2009), 275 B.C.A.C. 68; 465 W.A.C. 68; 2009 BCCA 358, refd to. [para. 14].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 15].

Browning v. War Office, [1962] 3 All E.R. 1089 (C.A.), refd to. [para. 16].

Mooney v. British Columbia (Attorney General) et al. (2004), 202 B.C.A.C. 74; 331 W.A.C. 74; 2004 BCCA 402, refd to. [para. 16].

Cook v. Lewis, [1951] S.C.R. 830, refd to. [para. 18].

Walker Estate et al. v. York Finch General Hospital et al., [2001] 1 S.C.R. 647; 268 N.R. 68; 145 O.A.C. 302; 2001 SCC 23, refd to. [para. 24].

Fairchild Estate v. Glenhaven Funeral Services Ltd. et al. (2002), 293 N.R. 1; [2002] UKHL 22; [2002] 3 All E.R. 305, refd to. [para. 29].

Barker v. Corus (UK) plc (2006) 351 N.R. 102; [2006] 2 A.C. 572; [2006] UKHL 20, refd to. [para. 29].

Sienkiewicz v. Greif Ltd., [2011] N.R. Uned. 37; [2011] UKSC 10; [2011] 2 All E.R. 857, dist. [para. 29].

Authors and Works Noticed:

Weinrib, Ernest, J., The Idea of Private Law (1995), p. 156 [para. 7].

Counsel:

Dick Byl and Kimi Aimetz, for the appellant;

Robert A. Easton, Ryan W. Morasiewicz and Greg A. Cavouras, for the respondent;

Jonathan Eades, for the intervener.

Solicitors of Record:

Dick Byl Law Corporation, Prince George, British Columbia, for the appellant;

Miller Thomson, Vancouver, British Columbia, for the respondent;

Attorney General of British Columbia, Vancouver, British Columbia, for the intervener.

This appeal was heard on February 17, 2012, before McLachlin, C.J.C., LeBel, Deschamps, Fish, Abella, Rothstein, Cromwell, Moldaver and Karakatsanis, JJ., of the Supreme Court of Canada. The judgment of the Court was delivered in both official languages on June 29, 2012, with the following reasons for judgment and dissenting reasons:

McLachlin, C.J.C. (Deschamps, Fish, Abella, Cromwell, Moldaver and Karakatsanis, JJ., concurring) - see paragraphs 1 to 54;

LeBel, J., dissenting (Rothstein, J., concurring) - see paragraphs 55 to 63.

To continue reading

Request your trial
822 practice notes
  • Malton v. Attia et al., 2015 ABQB 135
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • May 6, 2013
    ...[2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 492, footnote 86]. Clements v. Clements, [2012] 2 S.C.R. 181; 431 N.R. 198; 331 B.C.A.C. 1; 565 W.A.C. 1; 346 D.L.R.(4th) 577; 2012 SCC 32, refd to. [para. 492, footnote Hadley v. Baxendale (1854), ......
  • 1688782 Ontario Inc. v. Maple Leaf Foods Inc., 2020 SCC 35
    • Canada
    • Supreme Court (Canada)
    • November 6, 2020
    ...Managements Ltd. v. Ernst & Young, [1997] 2 S.C.R. 165; Atlantic Lottery Corp. Inc. v. Babstock, 2020 SCC 19; Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181; Ratych v. Bloomer, [1990] 1 S.C.R. 940; Blacklaws v. 470433 Alberta Ltd., 2000 ABCA 175, 261 A.R. 28; Morrison Steamship ......
  • Nelson (City) v. Marchi,
    • Canada
    • Supreme Court (Canada)
    • October 21, 2021
    ...[1999] 1 S.C.R. 201; Bolton v. Stone, [1951] A.C. 850; Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543; Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181; Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333; British Columbia Electric Railway Co. v. Dunphy, [1919] 59 S.C.R. ......
  • Palmer v. Teva Canada Ltd.,
    • Canada
    • Superior Court of Justice of Ontario (Canada)
    • August 12, 2022
    ...wrongdoer at large: he is a wrongdoer only in respect of the damage which he actually causes to the plaintiff" (Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at para. 16). There is no right to be free from the prospect of damage; there is only a right not to suffer damage tha......
  • Request a trial to view additional results
726 cases
  • Malton v. Attia et al., 2015 ABQB 135
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • May 6, 2013
    ...[2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, refd to. [para. 492, footnote 86]. Clements v. Clements, [2012] 2 S.C.R. 181; 431 N.R. 198; 331 B.C.A.C. 1; 565 W.A.C. 1; 346 D.L.R.(4th) 577; 2012 SCC 32, refd to. [para. 492, footnote Hadley v. Baxendale (1854), ......
  • Bergen v. Guliker et al., (2015) 374 B.C.A.C. 80 (CA)
    • Canada
    • British Columbia Court of Appeal (British Columbia)
    • June 22, 2015
    ...Police Services Board et al., [2007] 3 S.C.R. 129; 368 N.R. 1; 230 O.A.C. 260; 2007 SCC 41, refd to. [para. 47]. Clements v. Clements (2012), 431 N.R. 198; 331 B.C.A.C. 1; 565 W.A.C. 1; 2012 SCC 32, refd to. [para. Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [par......
  • National Bank Financial Ltd. v. Potter et al., 2013 NSSC 248
    • Canada
    • Nova Scotia Supreme Court of Nova Scotia (Canada)
    • April 17, 2012
    ...254 (C.A.), leave to appeal refused (1997), 225 N.R. 236; 102 B.C.A.C. 238; 166 W.A.C. 238, refd to. [para. 691]. Clements v. Clements (2012), 431 N.R. 198; 331 B.C.A.C. 1; 565 W.A.C. 1; 2012 SCC 32, refd to. [para. 696]. Northey-Taylor et al. v. Casey et al. (2007), 414 A.R. 318; 2007 ABQB......
  • British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority, [2016] 1 SCR 587
    • Canada
    • Supreme Court (Canada)
    • June 24, 2016
    ...v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890; Medwid v. Ontario (1988), 63 O.R. (2d) 578; Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181. By Côté J. (dissenting in part) Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748; Dunsm......
  • Request a trial to view additional results
56 firm's commentaries
  • Court Of Appeal Summaries (May 31 ' June 4)
    • Canada
    • Mondaq Canada
    • June 10, 2021
    ...but for test were not followed or that the wrong causation test was used. The but for test for causation outlined in Clements v Clements, 2012 SCC 32, requires the plaintiff to show on a balance of probabilities that "but for" the defendant's negligent act, the injury would not have occurre......
  • Court Of Appeal Summaries (August 8, 2022 ' August 12, 2022)
    • Canada
    • Mondaq Canada
    • August 15, 2022
    ...2007 BCCA 81, Paradis Honey Ltd. v. Canada (Attorney General), 2015 FCA 89, Saadati v. Moorhead, 2017 SCC 28, Clements v. Clements, 2012 SCC 32, Donleavy v. Ultramar Ltd., 2019 ONCA 687, Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, Mustapha v. Culligan of Canada Ltd., [2008]......
  • Court Of Appeal Summaries (January 25 ' 29, 2021)
    • Canada
    • Mondaq Canada
    • February 2, 2021
    ...830, Kaynes v. BP p.l.c., 2021 ONCA 36, Giroux Estate v. Trillium Health Centre (2005), 74 O.R. (3d) 341 (C.A.), Clements v. Clements, 2012 SCC 32, Operation Dismantle v. The Queen, [1985] 1 S.C.R. 441, P.K. v. Desrochers (2001), 151 O.A.C. 341 (C.A.), Spar Roofing & Metal Supplies Ltd. v. ......
  • Court Of Appeal Summaries (November 22-26, 2021)
    • Canada
    • Mondaq Canada
    • November 30, 2021
    ...SCC 53, Fontaine v. British Columbia (Official Administrator), [1998] 1 S.C.R. 424, Dickie v. Minett, 2014 ONCA 265, Clements v. Clements, 2012 SCC 32, Rothwell v. Raes (1990), 2 O.R. (3d) 332 (CA) Caruso v. Bortolon , 2021 ONCA 842 Keywords: Corporations, Fraud, Civil Procedure, Summary Ju......
  • Request a trial to view additional results
43 books & journal articles
  • A Real and Substantial Look at Jurisdiction in the Civil and Class Action Settings
    • Canada
    • Irwin Books The Canadian Class Action Review No. 8-2, May 2013
    • May 1, 2013
    ...the plaintiff to show on a balance of probabilities that any one of them in fact caused her injury. This is the 210 Clements v Clements, 2012 SCC 32 [Clements]. Note that the Supreme Court confirmed that material contribution to risk and not injury is “the more accurate formulation” of the ......
  • Introduction
    • Canada
    • Irwin Books The Canadian Class Action Review No. 12-1, December 2016
    • December 1, 2016
    ...Quebec smokers (or their heirs). 10 Tobacco Damages and Health Care Costs Recovery Act, 2009, SO 2009, c 13, s 5. 11 Clements v Clements, 2012 SCC 32 [Clements]. 12 Although I will mainly speak about the prospect of a class action, I am not referring to Parker, above note 6 in particular. N......
  • An Overview of Class Actions and Covid-19 in Ontario’s Long-term Care Facilities
    • Canada
    • Irwin Books The Canadian Class Action Review No. 16-2, March 2021
    • March 1, 2021
    ...43 44 Saadati v Moorhead, 2017 SCC 28, [2017] 1 SCR 543. Ibid at para 31. Snell v Farrell, [1990] 2 SCR 311 [Snell]. Clements v Clements, 2012 SCC 32, [2012] 2 SCR 181 at para 38 CCAR 16-2.indb 108 2021-01-20 2:30:54 PM L a R ev ue C a nadienne des r ecour s collectifs | Volume 16 • No 2 10......
  • Intervenors and Class Proceedings - Not Welcome at the Party?
    • Canada
    • Irwin Books The Canadian Class Action Review No. 12-1, December 2016
    • December 1, 2016
    ...Quebec smokers (or their heirs). 10 Tobacco Damages and Health Care Costs Recovery Act, 2009, SO 2009, c 13, s 5. 11 Clements v Clements, 2012 SCC 32 [Clements]. 12 Although I will mainly speak about the prospect of a class action, I am not referring to Parker, above note 6 in particular. N......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT