Date: Thu, 27 Apr 2006 13:36:42 -0400

From: David Cheifetz

Subject: SCC grants leave in 2 torts cases

Jason

For the almost insatiably curious - The SCC case summary is:

"Torts - Product liability - Causation - Foreseeability - Standard of review - Role of policy - Whether a "comparative blameworthiness" approach is part of the causation analysis - In what circumstances should the "but for" test for causation be used - In what circumstances should the "materially contributed" test for causation be used - Whether the relative financial positions of the parties is relevant in determining whether the risk was too remote - Whether Athey v. Leonati, [1996] 3 S.C.R. 458, ought to be applied on these facts - Whether it shifts the burden to prove causation onto the defendant - "Whether the Court of Appeal was pursuing distributive justice."

The SCC's use of "distributive justice" in "Whether the Court of Appeal was pursuing distributive justice" is probably a reference to para 21-23 of the Alta CA's judgment. Dealing with proximity at (I assume, the 2nd level), the panel wrote

[19] The determination of proximate cause has been traditionally considered a policy-driven finding ...

[20] However, in finding that it was not foreseeable for a worker to put the water hose in the gasoline tank, the trial judgment fails, in our opinion, to give adequate analytical emphasis to the following factors ...

[21] Professor L. Klar in Tort Law (Toronto: Thompson, 2003) cites the potential seriousness of the injury and the relative financial positions of the parties as relevant factors in determining whether the risk was too remote. Neither of these factors appear to have been considered in determining whether the risk was foreseeable in this case.

The CA's analysis of this issue was just as deep as its analysis of the factual causation issue.

Regards

David

----- Original Message -----
From: Jason Neyers
To: Vaughan Black
Sent: Thursday, April 27, 2006 12:51 PM
Subject: Re: ODG: SCC grants leave in 2 torts cases

Dear Colleagues:

Vaughan has informed me that one of the grounds of appeal in the Hanke case is whether "the Alta. C.A. erred in applying distributive justice?". The case should be interesting if only to see what the SCC makes of that error of appeal.

<<<< Previous Message  ~  Index  ~  Next Message >>>>>