Date: Wed, 14 Feb 2007 10:16:18 -0500

From: David Cheifetz

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

Russ,

Well ... If McLachlin CJ had been at last June's "Emerging Issues" conference at Waterloo (has anybody thanked Jason, recently, for the work he did arranging it?) I'm sure she would not have so slighted Alan Beever's article. Those, here, who were there will remember that recommended Alan's "Two Steps" to the assembled multitude. I think the context came through that I was speaking particularly to the judges in the audience. That view hasn't changed.

Cook v Lewis as a case of impossibility? Remember that the shot was bird-shot. Maybe bird-shot isn't like bullets in the sense that once can compare marks on the bullet to marks on the barrel of the rifle and say the bullet came from this weapon. Maybe the nature of bird shot is such that even if one had every bit of evidence that could be gathered, except videos which showing the path of each bird-shot pellet from muzzle to end-location, it's still impossible under current levels of scientific knowledge to determine which weapon was the source of the pellet(s) that struck Lewis.

That means, under this assumption, it could have been more than just one weapon if there was more than one pellet. There'd be different pellet impact sites, of course. Sounds almost like different mesothelioma sites in one's lungs, no?

I'm guessing that in this view of the facts, in the application of some sort of material increase in risk test to Cook, you wouldn't look at the 2nd hunter in any part of the inquiry into the significance of the first hunter's conduct, so it's not a counterfactual. Maybe that's part of what the Chief Justice had in mind. You'd ask, at least: did the negligent conduct (the breach of the standard of care conduct) of this hunter by shooting towards P create an unreasonable risk etc. If the answer to that was yes, you' part of the way towards satisfying the new mc criteria, whatever they are, that that hunter was a factual cause. If there was another hunter, you'd ask the same question. If there was a third, you'd ask the same question. You could have as many yes answers as there are hunters.

Since you're dealing only with the creation of unreasonable risk, because this hypothesis is premised on the assumption that science won't provide you sufficient evidence to make the "eureka" connection, you can have as many hunters as existed in the group who satisfy the test. Then, since the injury manifested, you have ... Fairchild, right?

Alan's explanation makes sense but, for it to be meaningful, law has to allow P cause of action against X for conduct damaging P's ability to prove a cause of action against Y. That's more than just a version of spoliation, I think. There's more on that sort of analysis in a Porat & Stein paper, Indeterminate Causation, in the 2003 Oxford Journal of Legal Studies.

I'm resigned to the fact I'll have to spill more ink.

Regards,

David

-----Original Message-----
From: Russell Brown
Sent: February 14, 2007 12:50 AM
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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