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Date: Thu, 9 Aug 2007 06:10 From: David Cheifetz Subject: Judges, Buses and A Butterfly in Tokyo
Jonathan, I've no particular interest in doing class counsel's thinking for them; however, since I started the discussion that disinclination is moot. Therefore ... This is long. My apologies. There may be flaws and it may be shallow. I've spent only a few hours on this and it's not an issue I'm currently working on.
Before Resurfice - the certification motion The certification motion was argued and decided before Feb 8, 2007. We're going to have to assume that the law governing proof of factual connection between wrong and alleged harm was the Snell-Athey structure. What, though, was the law governing proof of factual connection between wrong and gain under the waiver of tort claim or whatever else theory for disgorgement, particularly if no harm is required? It's either something nobody has ever heard of - a problem - or Snell-Athey. For simplicity, we'll assume the factual causation law is Snell-Athey throughout. I'll use "relief" as the generic term to cover both the harm-based (damages) and gain-based (disgorgement) claims. (Or you could use harm by defining harm to mean both the loss sustained by the plaintiff-class and the allegedly wrongful gain made by Eli Lilly.) That means the test for the connection between wrong and relief/harm was either but-or material contribution. Athey, as explained by Walker Estate, told us but-for applied unless but-for was "unworkable", in which case material contribution applied. With all due respect to past and present members of the SCC bench and the rest of the Canadian judiciary, none of them have ever defined unworkable, adequately let alone at all. There's already been too much spilled ink on that issue, so I'll let it pass. Whatever "unworkable" meant, was it really the case that but-for applied unless it was unworkable? Not according to the SCC. Remember Walker Estate? In Walker the SCC applied Athey material contribution even though it also held that but-for was applicable on the facts. What did the SCC call the situation to which material contribution applied in Walker: "negligent donor screening". Why did the SCC say "negligent donor screening" justified the use of material contribution rather than but-for? Because of the involvement of a 3rd person - a person other than wrongdoer or injured person - in the process leading to the harm. (We'll put aside the aside that there's almost always a 3rd, 4th, 5th etc person involved in the process. It's just a question of how far back one wants to extent the net that'll capture the causal candidates. It's clear the certification judge assumed that the applicable test was but-for - that means but-for as explained by Snell. Was that assumption correct. Why, given Walker Estate? What's the principled difference between Health Canada inadequately vetting Eli Lilly's submissions for approval of the drug and the CRC inadequately screen donors other than, of course, the former isn't negligent donor screening. I think, though, we should assume that Major J wasn't suggesting that the only example of a situation that involved the intervention/conduct of a third party that would trigger Athey material contribution, even though but-for was workable, was "negligent donor screening". So, the certification judge didn't have to ask himself whether but-for was workable or unworkable (i.e, how to square the circle), he could have just asked himself if the Heward facts fit the Walker Estate, for want of a better term, "exception" to the but-for applies unless it's unworkable thesis. If material contribution does apply, then we have the Athey explanation of the connection. We have causation where the wrongful conduct materially contributes to the occurrence of the harm. "A contributing factor is material if it falls outside the de minimis range." In other words wrongful conduct which makes more than a de minimis contribution to the occurrence of the harm is sufficient for factual causation. One would think that the fact that Eli Lilly manufactured and sold a harmful drug (assuming it was harmful) would be enough to cross the de minimis threshold and proof of that wouldn't fall afoul of any aspect of the common issue requirements. (I'd have to concede that, I suppose, if pressed, even in my defence counsel guise.) He wouldn't stop there, though. He'd have to ask himself what the situation would be if he held that the Walker Estate exception did not apply. Then he'd say: "Great, now I have to decide if but-for is unworkable". That means, first deciding what unworkable means. Let's see, Cheifetz points out that there are at least 11 meanings already in Canadian jurisprudence, Black says there's no workable meaning at all, Demeyere says it's "immaterial", Jane Stapleton calls it "an incantation" and Cheifetz - I like him because he has nice quotes from Carroll even if he (Cheifetz) is sometimes impenetrable - says the content wouldn't fill up a small thimble. Is there some way I can decide if but-for is going to be practicably applicable without having defining unworkable? Let me see ... [certification judge starts to read through SCC jurisprudence .... since it seems he wasn't helped all that much "by the purifying ordeal" of counsel's argument] ... of course there is, Hollis." Why Hollis? Remember the key facts. The advice (warning) regarding the implants wasn't from Dow to patient. It was from Dow to doctor. The warning was held to be inadequate. Dow wanted to call evidence to show that that the inadequate warning wasn't a but-for cause because, inadequate or not, the real but-for cause was the conduct of the doctor. Putting it another way, Dow wanted to call evidence to show that what it didn't adequately tell didn't tell the doctor who used the breast implants didn't make a difference to what the doctor told the patient, to what the doctor did. The SCC said nope, you can't do that. You're going to be held liable - on a but-for basis - even if it is the fact that your conduct didn't make a difference. Quoting from Hollis v. Dow Corning Corp., [1995] 4 S.C.R. 634
Why didn't Hollis apply? What's the principled difference between the facts of Hollis and the facts of Heward. In both cases, plaintiffs don't get the drug (Heward) or device (Hollis) except after consultation with a doctor? If Hollis applies, the only issue was whether Eli Lilly's warning (conduct, whatever) was adequate. If it was, case dismissed. If it wasn't, just as for Dow in Hollis, Eli Lilly wouldn't be allowed to call evidence as to the situation for a particular plaintiff. Factual causation was presumed. Hmmmm ... how about that, we've just used but-for to show the certification judge was right and the leave judge was wrong. (So much for the leave decision on this point.) Let's go back to material contribution and Walker Estate. Recall the statement in Walker Estate that material contribution applies any time there may be more than one cause of the harm. (A certain Alberta appeal court did. That decision was still good law in Alberta as of Feb 6/07 when the certification reasons were released. Heward is in Ontario? Fine. Walker is an Ontario case. You'll see I think we can agree that the Heward facts may accurately be described as a situation where there might be more than one cause. And, look at Snark, pages 83-85. You'll see more explanations of the meaning of "unworkable", some from Ontario cases, which seem to fit Heward. Finally, if the meaning of material contribution was as empty as I have suggested it was, then what choice did the certification judge have but to conclude that causation law might not be a problem. Or, at the least, use the cant we hear too often and conclude that the matter should be left for determination at trial on a full factual record?
After Resurfice - the certification motion First of all, we (here) have to decide what Resurfice means. Fortunately, the leave judge didn't have to do that because the Ont CA has already ruled that Resurfice didn't change anything about causation law, it only "clarified" it. The cases are Barker v Montfort Hospital and Rizzi v Macros. On that basis, the analysis that the leave judge should have done is the same as that the certification judge should have done. That analysis is above. End result, in my view, is that the certification decision stands. However, let's assume that Resurfice does say what its words seem to mean on material contribution. (Humour me, here.) I agree with you that if there's a but-for analysis that could properly apply to the Heward facts, that should mean that the Resurfice version of material contribution does not apply. (I'm taking the SCC at its word, here. That poses a problem given it used Walker as an example of material contribution, and we know that Walker is also a but-for case, but we'll pretend we don't know that. Look up Keats' negative capability; or perhaps Orwell's doublethink. First, I've already suggested why your A1 example - even if it shows that but-for is workable - produces a but-for application which is a variation of the standard but-for (the Hollis variation) which, I suggest, supports the certification decision. It's a form of deemed (imposed) factual causation, not actual. Resurfice doesn't suggest that the Hollis version of but-for is obsolete. We shouldn't assume it was intended to mean that, not the least because it doesn't say so and Hollis isn't mentioned. Also, a careful reading of Resurfice makes it clear that the SCC left all sorts of room for but-for variations. Next, we're back to Walker. The SCC in Resurfice specifically used Walker as an example of a type of factual situation to which Resurfice material contribution applies. It's time to quote again.
I'll repeat what I said in the first part of this message. What is the principled distinction between the Walker facts and the Heward facts. I'll do a bit of judicious word substitution.
Breaking the chain of causation? If we are to assume that the drug shouldn't have have been released by Health Canada had HC been properly informed, then we're asking ourselves what HC would have done if properly informed. That's exactly what the Walker court was asking about the donor. Sauce for goose, no? Anyway, bear in mind that my concluding paragraph began "if material contribution as now defined by Resurfice is the test". I didn't really say it is. I posed the question about the consequences of it being the applicable test, suggesting the court should have gone through the analysis as to which test it was. In any event, what we can agree on is that, under current Canadian law, the test has to be either but-for, whatever it means, or material contribution, whatever it means. I think I've shown that: 1. a correct use of but-for law, as it was pre-Resurfice, leads to a conclusion that factual causation isn't a problem that should prevent certification;
Assuming this analysis is correct, we should pay attention to see if it surfaces in the appeal reasons or argument. Could I develop arguments that might have some validity to counter the arguments I've made here; maybe enough to cause certification problems? I suspect I could but I don't know for certain. I can see some glimmers. But those might be alternative paths leading to opposite answers which are equally correct, as opposed to arguments destroying my analyses. Where would that leave the appeal court? It might well be only a problem because the law isn't yet clear. Am I going to post that analysis if I decide to undertake it? Probably not, not the least because I've no reason to undertake it and I can't post what I don't have. And, candidly, let the lawyers involved think for themselves. Whether proof of factual causation issues should be problem that prevents certification is an entirely separate question. On that issue, I recommend, highly, Craig Jones & Jamie Cassels text: The Law of Large-Scale Claims: Product Liability, Mass Torts, and Complex Litigation in Canada.
Regards,
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