Date: Mon, 16 Oct 2006 22:21:15 -0400

From: David Cheifetz

Subject: Causation in the Ontario CA

Richard,

Trying to be charitable towards the majority, it's possible they thought they were saying something about causal overdetermination and material contribution. Paragraph 53's "cases that involve multiple inputs that all have harmed the plaintiff" makes sense only if understood as an overdetermination reference.

Other than that? Aristorenas stands for the proposition that, even in Ontario, no evidence of causation is not yet enough evidence to establish causation (at least at the appellate level). The problem was that if there was no expert evidence on the relationship, if any, between the delay and the onset of the infection then there could be no valid evidence at all. And, once that evidence was gone, all that was left was a post hoc argument which isn't supposed to be valid, even in what passes for legal logic.

Although explaining the Canadian material contribution doctrine is a labour that even Dworkin's Hercules might have ducked, the Supreme Court of Canada has promised to undertake it. In December 2006 (Dec 12 if it sticks to the published schedule), the SCC will hear an appeal from an Alberta Court of Appeal decision: Hanke v. Resurfice Corp., 2005 ABCA 383 (CanLII), leave to appeal granted 2006 CanLII 13741 (S.C.C.). Part of the SCC summary of the case (quoting from the SCC web site) is: "In what circumstances should the 'but for' test for causation be used - In what circumstances should the 'materially contributed' test for causation be used". In Hanke, the Alberta CA held that material contribution is to be used when there is more than one potential cause because having more than one potential cause makes but-for unworkable. Vaughan Black and I wrote about brief note about the case: "Material Contribution and Quantum Uncertainty: Hanke v. Resurfice Corp." (2006) 43 Canadian Business Law Journal 155. (My name is first in the list of authors only because I "won" the coin toss.)

David

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From: Wright, Richard
Sent: October 16, 2006 1:51 PM
Subject: ODG: RE: Causation in the Ont. CA

Thanks, Jason. The majority makes a valiant but in my mind unsuccessful effort to describe some coherent scope and limitation for the Canadian material contribution test other than (1) when there has been actual causal contribution in a case of causal overdetermination [a situation not mentioned by the majority] or (2) a case of possible contribution to an actual injury where all that can be proven is increased risk or a chance of causation [for which the majority says there is no liability].

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