Date: Thu, 8 Feb 2007 12:55:02 -0800 (PST)

From: David Cheifetz

Subject: Resurfice Corp. v. Hanke, 2007 SCC 7

Take a good luck at paras. 24 and 25, in conjunction with the description of Cook v. Lewis and Walker Estate v York Finch as unreasonable risk cases.

Then ask yourself this question. Has Fairchild as restated by Barker v Corus but still with Fairchild's 100% of the damages exposure just arrived in Canada?

In light of all the "impossibility" of proof of factual causation on a but-for basis comments underpinning when material contribution may apply, and the exposure to unreasonable risk comment, and the materialization of an injury within the ambit of that risk, somebody tell me whether "liability may be imposed" (para 25) means that'll be on the basis of deemed factual causation or on the risk analysis?

Maybe some more ink, judicial and academic, will have to be spilled - at an appropriate juncture, of course [:-s

Best,

David

----- Original Message ----
From: Russell Brown
Sent: Thursday, February 8, 2007 3:32:13 PM
Subject: ODG: Resurfice Corp. v. Hanke, 2007 SCC 7

The SCC has pronounced today in the long-awaited Hanke. Two brief observations:

1. Unless I'm missing something (and subject to #2, below), the pronouncement tells us nothing that is new/helpful about the material contribution test.

2. Since when is Cook v. Lewis a case for applying material contribution?

The entire decision is quite brief and available at http://scc.lexum.umontreal.ca/en/2007/2007scc7/2007scc7.html

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