Date: Tue, 17 Oct 2006 09:33:20 -0500

From: Richard Wright

Subject: Causation in the Ontario CA

The sentence you quote from paragraph 53 literally would seem to refer to multiple actual causes, and there is a reference in paragraph 51 to situations "where a contributing factor is material in that it falls outside of the de minimis range." But all the cases discussed in paragraphs 51 to 53 involve situations where only a possibility of causal contribution, rather than actual causal contribution, could be proven. The sentence you quote begins with "Thus," as an apparent attempt to summarize the situations discussed in the prior paragraphs.

I agree with the majority's "no evidence" argument, even with respect to any increased risk caused by the delay in proper treatment. But, apparently, even if there had been such evidence, the majority would have refused to allow a finding of causation based on "material contribution," even though Canadian decisions have done so allowing full recovery in other cases while refusing to recognize a "lost chance" action that would only permit proportional recovery. I think the majority was correct in refusing to find literal "material contribution," but was stuck with trying to deal with the Canadian cases that allow such findings when there has been no proof of actual contribution but merely proof of increased risk or possible contribution. Hopefully, the SC in the Hanke case will shed the "common sense" "robust and pragmatic" arm-wavings (as engaged in by the dissent in Aristorenas) that permit findings of "material contribution" when no actual contribution actually can be proven and instead focus clearly on the second-best policy issue of what should be done when it is impossible to prove or disprove actual causal contribution but it is can be proven that the defendant was a possible tortious cause of the injury that occurred. Then maybe other Commonwealth courts will similarly clean up their confusing cases and verbiage on "common sense" causation.

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From: David Cheifetz
Sent: Monday, October 16, 2006 9:21 PM
Subject: Causation in the Ont. 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.)

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