Clarifying Causation in Tort

Abstract

This article about causation in negligence law is different from past attempts at unraveling causation in Canada. It argues that there is nothing overly confusing about the law of causation in negligence. Rather than lament the confusing state of affairs or argue for a new causation test, the article attempts to define the current state of causation in Canadian negligence law with a simple goal in mind – to have a clearer, more productive conversation about the law with the fundamental concepts clearly and unobtrusively on the table. Such clarification should hopefully augment and streamline discussions among courts, commentators, and lawyers about this seemingly thorny subject. To date, writings about causation in tort have focused largely on the mess of the entire subject and how so much is confusing and undefined.

This article proceeds on the foundation that the leading Canadian cases on causation should not be read like cryptic advice from isolated fortune cookies, with each word taking on ominous significance. The cases are a continuum of conversations about an important topic in tort law. This article offers a cohesive framework to the law by taking a longitudinal perspective and focusing on the simple themes of Canadian tort law present in the causation jurisprudence: the doctrinal tests for causation, evidence for proving causation, thin skulls, and crumbing skulls. Avoiding emphasis on a case-by-case dissection approach, this article instead combines the relevant jurisprudence in an understandable scope. At the centre of the analysis is the bedrock principle that the negligence system is a fault-based system which relies on proving a connection between a defendant’s wrongful behaviour and a plaintiff’s injury.

Keywords: Tort, causation, negligence, Canada