Date: Wed, 18 Apr 2007 13:21

From: David Cheifetz

Subject: Canadian Factual Causation Law

Dear Colleagues:

For those who are attempting to keep track of ongoing developments in Canadian causation law, in light of the Supreme Court of Canada's Resurfice v Hanke 2007 SCC 7 - I suppose it no longer matters that we're well past April 1 -

Based on recent British Columbia case law interpreting Resurfice v Hanke - I won't bother to speculate why we have a flurry of cases from British Columbia and (with an irrelevant exception from Alberta) nothing from anywhere else – we can now discern the new Canadian ‘paradigms’ for the approach Canadian judges are to use in arriving at and setting out their conclusions as to factual causation, including whether the applicable test is but-for or material contribution.

1. The Tests

First of all, (regardless of what one might have thought Resurfice said) Canada now has at 3 tests, not two tests, for factual causation. (Yes, I know that a British Columbia trial or appellate judge does not actually have the power to overrule the Supreme Court of Canada; however, some litigant will now have to pay for the consequences of these decision, or somebody will settle rather than incurring the expense of appealing or fighting about how persuasive the wrong decision is.)

1. but-for contribution to injury, which need not be determined with scientific precision and is to be decided on a balance of probability basis using a common sense, robust and pragmatic approach to the assessment of the evidence (Snell, Athey, Resurfice)

2. material contribution to injury, complete with de minimis standard which applies to determine whether any act materially contributed to the injury, which need not be determined with scientific precision and is to be decided on a balance of probability basis using a common sense, robust and pragmatic approach to the assessment of the evidence (Athey, Durand (BSCC), Greenall (BCSC))

3. material contribution to risk, which applies only in exceptional cases, to be determined in accordance with procedures yet to be determined but whose content has now been generally sketched (Resurfice)

         see Greenall v. MacDougall and HMTQ, 2007 BCSC 339 at paras 34-39.

In addition, British Columbia judges have been good enough to clarify that:

Resurfice’s “exceptional” circumstances means “unusual circumstances”: see Simpson v. Baechler, 2007 BCSC 347 at para 62 (CanLII)

The SCC's statements in Resurfice on material contribution are obiter: Hutchings v. Dow, 2007 BCCA 148 at para 19: "In Resurfice, the Supreme Court of Canada took the opportunity (albeit in obiter dicta) to clarify the relationship between the “but for” test and the “material contribution” test with respect to causation."

Resurfice has to be understood to have overruled the SCC decisions in Laferrière v. Lawson, [1991] 1 S.C.R. 541 and St. Jean v Mercier 2002 SCC 15, [2002] 1 S.C.R. So, in medical malpractice cases, Resurfice applies any time that "due to the current limits of scientific knowledge" (which by definition has to satisfy the requirement of a factor outside of the plaintiff's control) the evidence is enough to establish that the physician's negligence possibly caused the injury, but it is not enough to establish that it probably caused the injury. These causes are no longer "loss of chance" cases but are now causation cases under Resurfice. See, Bohun v. Sennewald 2007 BCSC 269 at paras. 70, 93-94:

[93] This discussion returns us to the submissions of the parties on causation. The defendant submits that Ms. Johnston has not proven that “but for” the alleged delay she would not have had a recurrence of her breast cancer. In their submission, the most likely cause of the recurrence and spread is the breast cancer itself. They submit that at best, Ms. Johnston has established a lost chance, and that such a loss is not sufficient to establish causation: Laferriere v. Lawson, 1991 CanLII 87 (S.C.C.), [1991] 1 S.C.R. 541.

[94] I do not agree. This is not a “lost chance” case, but a causation case. This case meets the special circumstances that require an application of the material contribution test. In the language of Resurfice, it is impossible for Ms. Johnston to prove that Dr. Segal’s negligence caused her injury using the “but for” test. The impossibility is due to factors that are outside of her control. While it is known that the cancer metastasized to other parts of Ms. Johnston’s body prior to the first surgery in January 2002, it is impossible, due to the current limits of scientific knowledge, to know whether that migration took place before or after June 2001.

2. How judges might explain their analyses and conclusions

Durand v Bolt 2007 BCSC 480 is likely to be a common example of judges will explain their conclusions on factual causation.

[40] In Athey v. Leonati, 1996 CanLII 183 (S.C.C.), [1996] 3 S.C.R. 458, the Supreme Court of Canada stated at p. 466: [text of paras 13-16 set out in entirety

[41] More recently in Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), 2007 SCC 7, [2007] S.C.J. No. 7 (QL), the Supreme Court of Canada revisited the issue of causation and stated at [paragraphs] 19 to 29: [text of paragraphs in their entirety]

[42] This is not a case where the “but for test” must be displaced by the “material contribution test”. The evidence must establish on a balance of probabilities that the plaintiff’s injuries (and in this case, more specifically, her present suffering from TOS) would not have occurred but for the defendant’s negligence. As established in Snell v. Farrell 1990 CanLII 70 (S.C.C.), (1990), 2 S.C.R. 311, causation need not be determined with scientific precision.

[43] I am satisfied that the evidence of Drs. Shuckett, Salvian and Travlos under cross-examination raises only the possibility that Ms. Durand may have suffered a spontaneous pre-accident onset of TOS since all of those doctors testified that the symptoms reported by Dr. Zradicka are too vague to form the basis of a diagnosis of either pre-existing or spontaneous TOS.

[44] [say a few words about something that the judge thinks will buttress the conclusion - here the judge commented on some of the evidence]

[45] I find on a balance of probabilities that Ms. Durand’s present injuries were caused by the accident.

Dare we assume this is because the trial judge realized attempting to make sense of the various SCC pronouncements wasn't practicable?

3. What are the chances?

A few years ago, the Supreme Court of Canada rendered a decision. A short time later, on an application for rehearing by one of the interveners, the SCC issued what it described in the style of cause as a “clarification” to its prior decision. In the clarification, in explaining why it was dismissing the application for the rehearing, the SCC told the profession that the initial decision did not mean what some in the profession and outside of the profession were suggesting it meant: see, R. v. Marshall (Clarification) [1999] 3 S.C.R. 533.

I wonder how long it will take before somebody in the SCC begins to long for a chance to do something similar in respect of Resurfice. Or, more to the point, realizes they'd better say something to stop the financial bleeding as litigants are put to expense they should never have been put to because of the SCC's too casual comments in Resurfice.

Cheers,
David Cheifetz

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