Date: Thu, 26 Oct 2006 06:29:33 -0400

From: David Cheifetz

Subject: Factual Causation in the Ontario CA

Richard,

I apologize for my delay in responding.

In for a penny, etc. ...

As to Hanke, the SCC will have to formally disavow Snell and the material contribution aspect of Athey to shed, as you nicely put it, the "arm wavings". I don't see that happening with this Court, not the least because I expect that McLachlin CJ will be front and centre in the opinion and her factual causation philosophy seems to seems to have been nicely summarized in her article in the volume of essays in tribute to John Fleming. The Chief Justice wrote, in McLachlin, "Negligence Law — Proving the Connection" in Mullany and Linden, eds., Torts Tomorrow, A Tribute to John Fleming (Sydney, LBC Information Services, 1998) p. 16, that some people "perceive" that too-technical rules for factual causation are depriving injured people of compensation they ought to obtain and "I would suggest that it is because too often the traditional 'but-for', all-or-nothing, test denies recovery where our instinctive sense of justice — of what is the right result for the situation — tells us the victim should obtain some compensation." Of course, were I conceited enough to believe anything that I've written might make a difference, I'd hope that the panel would do what I don't expect just to prove me wrong. However, I didn't have that many pucks hit me in the head before I retired.

As to Aristorenas, you're of course right that the sentence in para 53 shouldn't be read to refer to causal overdetermination, given the introductory words which I (intentionally) didn't quote. So that doesn't help us at all in trying to make sense of what the majority meant to say the law is, let alone what they understood about the law to be - let alone the conceptual underpinnings. I've obtained the copies of the facta filed with the Ontario CA in Aristorenas. For whatever it might mean to our understanding of what the Aristorenas panel thought and meant, I mention: (1) Hanke isn't mentioned in the facta; (2) neither are any of Gregg v Scott, Chester v Afshar, and Barker v Corus, although Hotson and Fairchild are; and (3) there's only one "academic" article referred to on causation: Vaughan Black's "A Farewell To Cause: Canadian Red Cross Society v Walker Estate" (2001) 24 Adv Q 478.

In passing, the Aristorenas factum explains what was, to me, the surprising appearance in the dissent (see para 33) of the thin-skull rule and foreseeability as an apparent justification for the finding of factual causation. My suspicion, on reading that, was that Aristorenas' counsel had tried an end-run around the evidence issues by arguing, essentially, that,

(1) because of state of medical knowledge relating to the aetiology of necrotizing fasciitis
(2) because it is true that we can't eliminate the possibility that earlier intervention might have made a difference and
(3) to be fair to the plaintiff given (1) and (2) then
(4) necrotizing fasciitis should be considered nothing more than an example of a more serious complication of an existing harm (infection) that resulted from delay in proper treatment.

That's exactly what was tried in the factum version of Ms Aristorenas' argument, albeit not put quite that way. The factum's opening sentence gives the strategy away: "The plaintiff submits that this case is much more about sub-standard wound care than it is about the rare and unpredictable disease, necrotizing fasciitis."

Unpredictable? Doesn't that mean we can't say "probably"?

Anyway, you probably won't be surprised to hear that there's already a handful of what I call lawyers "webfomercials" - lawyers' Internet newsletters sometimes having all the content of a TV infomercial - circulating in the Canadian practitioners' universe asserting that Aristorenas "clarifies" factual causation jurisprudence for Ontario (and by implication) Canadian lawyers.

Right.

All that's left is to hope Hanke will make a difference. I'm not holding my breath.

David Cheifetz

-------------------------------------------------------
From: Wright, Richard
Sent: October 17, 2006 10:33 AM
Subject: ODG: RE: Causation in the Ont. 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.

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