Date: Fri, 9 Feb 2007 10:57:59 -0600

From: Richard Wright

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

Although the trial court may have been right on the negligent foreseeable risk issue, both it and the SCC seem to have confused that issue with the causation issue: the fact (if it was a fact) that the plaintiff was not confused in the particular instance does not establish that the design was not defective or that there was an inadequate failure to warn due to possible confusion of the tanks, but rather only that any negligent design or failure to warn did not matter -- did not contribute to the injury -- in the particular case.

Otherwise, the opinion simply confirms how really murky Canadian law (and judicial "analysis") is on causation. Are the overdetermined-causation (e.g. multiple fires or pollution) cases instances of "material contribution" in the (non-contribution) sense now stated, of being unable to prove actual causation but rather held liable for creation of the sort of risk that materialized?

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From: DAVID CHEIFETZ
Sent: Thursday, February 08, 2007 2:55 PM
To: Russell Brown
Subject: Re: ODG: 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

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