A Rhetorical Question for Canadian Appellate Counsel

• Author: David Cheifetz
• Date: November 05, 2017

If you were appearing before your jurisdiction’s Court of Appeal and:

1. you didn’t mention one of the Court’s own decisions decided within the year, deciding one of the central issues in the case you were on; or
2. mentioned that case but on another point without mentioning that it had decided the issue in your case; or
3. relied on a decision of your Court of Appeal for a proposition which had been rejected by the Supreme Court in at least 3 decisions after that Court of Appeal decision and (you did so) without mentioning the SCC decisions on point; or
4. argued for an interpretation of the leading SCC decisions which is explicitly contrary to what those decisions say and you failed to mention the last SCC decision on point which is also explicitly contrary, etc.

What do you think that someone on the appellate panel would say to you during argument if he or she spotted the problem, or would be said about your argument afterwards in the appellate reasons, and would happen to your reputation?

Now, instead of assuming that appellate counsel did anything like I’ve outlined in items 1, 2, 3 or 4, assume it was one or more of the members of an appellate panel.

That’s what happened in two recent appellant decisions. I don’t think we can blame the advent of Halloween.

Ontario

Sacks v Ross, 2017 ONCA 773, decided in October, 2017, has all of these problems, explicitly.

In Sacks, the panel somehow managed to ignore, or overlook, in their published reasons, the ratio of Surujdeo v Melady 2017 ONCA 41 even though the panel cited Surujdeo on a different issue. There’s no room for disagreement on that one. The panel, somehow, did not mention the fact that Surujdeo had decided the issue the Sacks panel decided and that the Surujdeo conclusion is the opposite of the Sacks conclusion.

The panel also misstated the current meaning of the but-for test for factual causation, as explained by the Supreme Court of Canada. The misstatement also isn’t helpful. That’s my opinion. I believe most practitioners in the area will agree with me.

I won’t waste readers time, here, attempting to explain what the Sacks panel did beyond the next sentence. The Sacks panel held that a trial judge should not use the word “necessary” in explaining the meaning of the but-for test to a jury, because all the but-for test requires is a “real and substantial connection” between the negligence and the injury.

If you have nothing better to do, read a 2003 ONCA decision not mentioned in the Sacks reasons which set out Ontario law as it was in 2003 when Athey material contribution to injury ruled the realm and, in Ontario, was known as “contributory causation”: Mizzi v Hopkins, 2003 CanLII 52145 (ON CA). Mizzi, and the “contributory causation doctrine”, for those who don’t “remember” that far back, was Ontario’s analogue of the later Alberta Court of Appeal decision in Resurfice (2005 ABCA 383). There, Alta CA stated that Alberta courts were to use the Athey material contribution (to injury) test rather than the but-for test any time there could be more than one cause. (Where there is more than one potential cause, the “material contribution” test should be used’: 2005 ABCA 383, [14]). The Alta CA had the temerity to accurately quote the SCC for that proposition; probably one reason why the SCC granted leave in Resurfice and implicitly...