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Date: Fri, 20 Feb 2004 19:09:21 -0500 From: David Cheifetz Subject: Fairchild Considered
I think the Ont. CA's judgment in Cottrelle v Gerrard is more usefully compared, and unfavourably so, to the Eng. CA's decision in Gregg v Scott [2002] EWCA Civ 1471 on the loss-of-chance issue. On the material contribution as proof of cause-in-fact issue, what's below is, to a large extent a disagreement relevant only to those concerned with Canada's jurisprudence. I disagree, with respect, that Cottrelle provides any new doctrinal insights into either the content of material contribution as proof of cause-in-fact, assuming it is the applicable test, or the prior question of when it is applicable instead of, or as an alternative for, but-for. The practising-lawyer part of me (which is the usually dominant part) tells me that Cottrelle isn't going to be cited by judges looking to construct a rationale for using but-for or material contribution. The usually latent academic strain tells me it's another case of an immaterial contribution to the debate, borrowing from the title of Demeyere's article The Material Contribution Test: An Immaterial Contribution to Tort Law (2000), 34 U.B.C.L. Rev 317. Sharpe JA wrote, at para.30, that "The "but for" test has been relaxed as "unworkable" in cases where, practically speaking, it is impossible to determine the precise cause of the injury." As Demeyere pointed out in her paper, and Black has pointed out in his papers The Transformation of Causation in the Supreme Court: Dilution and "Policyization" in Annual Review of Civil Litigation 2002, ed. T. Archibald and M. Cochrane (Carswell, 2003) and the earlier A Farewell To Cause: Canadian Red Cross Society v Walker Estate (2001), 24 Adv. Q. 478 there is really no substance to the Canadian content of the material contribution doctrine and a logical analysis of the various pronouncements on the scope of the doctrine either leads to nothing or to the conclusion that the material contribution test is seemingly available in every case the court has problems with the but-for analysis. I don't see that Sharpe's statement in para. 31 why the material contribution cases don't apply - "In the case at bar, there is no practical uncertainty as to the impact of the appellant's wrongful conduct upon the plight of the respondent" helps us at either the first level of which test to use or the second level of the content of material contribution. The question of whether there's any uncertainty as to the extent of the impact of the wrongful conduct on the plight of the respondent - I take that to mean the injury - is a question that is asked in both tests. The only way, in my view, to make the statement meaningful is to suggest that Sharpe was hinting that one needs less of an impact on the injury for material contribution causation than for but-for causation. However, if that's all he meant, what has he added to the already accepted proposition that a materially contributing cause is something which is more than a de minimus factor? In the Canadian context, Cottrelle is probably a harbinger of what may turn out to be Canadian references to Fairchild which overlook a very important quibble based on stare decisis. In brief - the status of McGhee, and the rereading of it in Wilsher, in Supreme Court of Canada tort jurisprudence either in light of Fairchild or regardless of Fairchild. In the SCC's 1990 Snell v Farrell, Sopinka J. specifically mentioned and rejected the material increase of risk of injury approach which was one of the possible explanations for McGhee. He also opted for the Wilsher reading of McGhee although that wasn't necessary to the way he decided the case. Nonetheless, that would seem to make that view of McGhee supposedly the binding Canadian jurisprudence until the SCC says otherwise. However, the SCC's 1996 unanimous Athey v Leonati (where Sopinka was one of the judges on the panel though not the author of the opinion) mentions Snell and McGhee but not Wilsher in citing both Snell and McGhee for the proposition that "Causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury" [para 13] [emphasis added]. McGhee and Bonnington, among other cases, are later cited for the proposition that material contribution is available as the test for proof of cause-in-fact where but-for is unworkable. However, Athey never mentions Wilsher all. Anecdotal evidence and recent judgments suggest - see, for example, Lurtz v. Duchesne, [2003] O.J. No. 1540 (S.C.J.) at para 347 - that the dominant view of trial judges in common law Canada has become that the material contribution test may be used whenever the but-for test "is not helpful because several causes could account for the harm". A broader way to put this is any time the judge is having trouble singling out one cause on a but-for approach as the basis for finding a sufficient connection between that conduct and the injury to hold the defendant in issue liable. That approach seems to make but-for obsolete since it is probably true the that several causes can be found to account for almost any particular case of harm.
David Cheifetz
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