Date: Sat, 9 Jun 2007 15:25

From: David Cheifetz

Subject: Canadian Causation Follies: A Contest

Dear all,

As some of you know, the Supreme Court of Canada decided to introduce Canada's version (?) of the Fairchild material contribution test for "factual causation" and the imposition of liability into Canadian jurisprudence in Resurfice Corp v Hanke 2007 SCC 7 with these stirring words:

[20] Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful to catalogue the various debates. It suffices at this juncture to simply assert the general principles that emerge from the cases.

It then described the "general principles" this way:

[23] The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and defendant’s conduct” is present. It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327, per Sopinka J.

[24] However, in special circumstances, the law has recognized exceptions to the basic “but for” test, and applied a “material contribution” test. Broadly speaking, the cases in which the “material contribution” test is properly applied involve two requirements.

[25] First, it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test. The impossibility must be due to factors that are outside of the plaintiff’s control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff’s injury must fall within the ambit of the risk created by the defendant’s breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the “but for” test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a “but for” approach.

[26] These two requirements are helpful in defining the situations in which an exception to the “but for” approach ought to be permitted. Without dealing exhaustively with the jurisprudence, a few examples may assist in demonstrating the twin principles just asserted. ...

It then offered Cook v Lewis [1951] S.C.R. 830 and Walker Estate v York Finch General Hospital [2001] 1 S.C.R. 647, 2001 SCC 23 as examples of cases in which the facts fit the impossibility requirement. It's of course possible that these cases could have been, though asserting they are involves a high degree of ... revisionism.

So, unfortunately, the SCC didn't, really, identify "the cases" from which the "general" principles in para. 25 emerge.

In April and May, on two Canadian blogs which one should assume some lawyers (and even some judges) read sometimes, I made an offer. I'd buy dinner, at Morton's (in Toronto - an expensive steak-house, for those who don't recognize the name) for the lawyer (or judge) and companion who could identify the Canadian cases (or even Commonwealth cases) that were still or again authorities - I didn't even say Canadian authorities - before Resurfice, from which Resurfice drew the general principles as they are summarized in paragraph 25 of its reasons. I added, borrowing from the "Spice Girls" I "really really really wanna know".

I figured that that I might get an answer before my birthday. (Today - June 9. I can no longer claim to be a dyslexic 55.)

I have, so far, received a sum total of ZERO responses. I think it's correct to assume there are a number of possible reasons for that situation. I list them below. In each case "Nobody" means "Nobody who knows and is in a position to say anything". It does not mean "Outis" [Odysseus]; however, if that person or persons were inclined to out themselves ... In any event, I believe the possibilities are:

1. Nobody reads those blogs. We can eliminate this one, at least anecdotally.

2. Nobody reads anything I post. We can eliminate this one, again anecdotally.

3. Nobody who cares read the specific message. That's a possibility. (See, Cassandra.)

4. Nobody who knows and cares read the specific message. That's also a possibility.

5. Nobody who knows wants dinner at Morton's at somebody else's expense. I'm going to assume that's so unlikely a possibility that we can ignore it.

6. Nobody who knows wants dinner with me at Morton's, even at my expense. That's a possibility.

7. Nobody knows. That's also a possibility.

8. Absolutely no interest on the part of anybody - that's a restatement of 5, so we've eliminated it, already.

9. Somebody knows but he or she has been ordered by certain Powers That Be to be silent lest unfortunate events occur. That's a possibility.

Did I leave anything out?

Does anybody here care to provide an answer? Morton's is worth going to, especially at somebody else's expense.

Cheers,
David

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