Date: Wed, 14 Feb 2007 00:33:21 -0600

From: Richard Wright

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

If, as the SCC seems to say, the "material contribution" "test" now covers all cases not resolvable with respect to actual causation by the "but for" test, including not only cases involving causal overdetermination (as the "material contribution" "test" perhaps was previously understood) but also cases involving increased risk or "lost chance" or -- more generally -- possible causal contribution which however cannot be proven or disproven, then Cook v. Lewis is indeed now covered by the "material contribution" "test." Cook v. Lewis is not, as Neil surmises, resolvable by the NESS test or any other plausible test of actual causation; it rather is a case more akin to the increased-risk and lost-chance cases.

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From: Russell Brown
Sent: Tue 2/13/2007 11:49 PM
Subject: Re: ODG: Resurfice Corp. v. Hanke, 2007 SCC 7

Dear Neil/David,

I agree with Neil. The SCC appears at paragraph 27 to be conflating material contribution with material increase of risk, turning material contribution into some all-embracing generic test where the but-for test is "unworkable".

Even if we're wrong and they remain distinct, neither test really explains the reference to Cook v. Lewis. Material contribution contemplates that the defendant actually does something to the plaintiff that may (or may not) have materially contributed to the injury. The only way we can understand the "innocent" defendant in Cook v. Lewis as having done so is by adopting Rand J.'s view (as explained by Allan Beever in "Two Steps out of the Mire") of the injury as being to the remedial right that was parasitic to the plaintiff's right to bodily integrity. It doesn't seem from the judgment, however, that McLachlin CJ had this in mind (Allan's piece having perhaps been judicially consigned to either or both of the "unnecessary" or "unhelpful" piles).

Rather, she seems to view the injury in Cook v. Lewis as the shooting of the plaintiff, to which the "innocent" defendant did not contribute.

The McGhee test doesn't help us resolve Cook v. Lewis either. The "innocent" defendant's shooting negligently in the plaintiff's direction does not materially increase the risk that someone else will shoot the plaintiff.

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