Date: Wed, 18 Apr 2007 23:13

From: David Cheifetz

Subject: Canadian Factual Causation Law

Dear Colleagues:

I suppose one should be careful what one wishes for. We now have our first reported (to my knowledge) Ontario case commenting on Resurfice and applying it - an Ontario CA case - and our first conflict between Ontario law and BC law.

Barker v. Montfort Hospital (Ont CA April 18, 2007) (per Rouleau and Blair JJA, Weiler JA dissenting) (also pdf)

According to the majority:

[51] Subsequent to the hearing of this appeal, the Supreme Court of Canada released its decision in Resurfice v. Hanke, (2007) S.C.C. 7. As set out by the Chief Justice in her reasons at para. 20, this decision simply asserted “the general principles that emerge[d] from the cases.” It did not alter the state of the law on causation. ...

Paragraphs 52 -54 deal with the Resurfice material contribution test. The majority held that facts didn't satisfy the requirements. There's no discussion of the meaning of the Resurfice two prongs. The majority held that the plaintiffs "have not shown that it was impossible to prove that the delay in carrying out the operation caused Ms. Barker’s injury on a balance of probabilities." (para 53) therefore the applicable test was but-for (para 54).

[54] In my view, therefore, the material contribution test has no application to the present case. We are left, therefore, with the “but for” test. As noted above, no expert opined on causation based on an eight to fourteen hour negligent delay in operating. Assuming that a positive medical opinion could not have been obtained in this case, the “but for” test allows for the application of the robust and pragmatic approach: see Snell v. Farrell, supra, at para. 44. Under that approach the respondents nonetheless have to provide an evidentiary foundation for finding that there is a substantial connection between the injury and the defendant’s conduct. As I have noted in the earlier portion of this decision, no such foundation was laid in the present.

[59] In my view, therefore, the evidence does not support a finding that the negligent delay in operating caused the loss of any additional bowel.

The dissent (by Weiler JA) seems to be an adoption of the increase in risk equal causation analysis of Resurfice. See para. 61-63, 101-104. Para 104 is:

[104] If detection of the respondent’s volvulus was beyond the current limits of scientific knowledge before an operation was carried out, the appellant’s delay in operating after her condition worsened was a breach of his duty of care towards her. This breach unreasonably exposed her to the risk of losing her bowel or to losing more of it than she otherwise would have lost. As such, I conclude that the short bowel syndrome from which she suffers is within the ambit of the risk that the appellant created.

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David Cheifetz

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