Date: Wed, 19 Sep 2007 02:56

From: David Cheifetz

Subject: Causation in the NZCA

Lara,

I know they misread you, if they took you as their source for the way I stated things in the last paragraph. That's why I phrased the last sentence as I did - "I assume it's a view they took from their reading". I should have made it clearer I wasn't saying that that's in your text. It's not. Sorry about that.

Regardless of whether Ambros merits any discussion of material contribution (in whatever flavour) how does the NZCA read your text, cite it as much as it did - usually get it right (I think) where it's used explicitly: I didn't check - and not realize there was, at least verbally, more to Canadian common law factual causation than Snell's robust & pragmatic approach, whatever one is to make of Sopinka J's discussion of inferences, and Laferriere's rejection of possibilistic causation. Should we count the number of times you mentioned Athey and Walker? However, the NZCA mentions only Snell and Laferriere. I was trying to guess where the NZCA came with the idea that one could describe Canadian factual causation law effectively mentioning only Snell and Laferriere. It could only be by misreading something they were given to read in the original or correctly reading something that somebody gave them that was wrong. Does anybody know if the NZCA uses clerk / research lawyers?

And, you can't take Laferriere without Gonthier J's explanation in Mercier of what he meant so the rejection of loss of chance is Mercier explaining Laferriere.

Not that it matters a whit, but my reading of Ambros is that, however they got there, the NZCA thinks that Snell summarizes the substance of how one proves factual causation in Canadian tort law. If they didn't misread you, then what else did they misread? Or who did they rely on for their misunderstanding of Canadian law as it was before Resurfice.

Or, maybe I'm entirely out to lunch (breakfast now in NZ, right?) Maybe they chose not to mention Athey and Walker, and Resurfice, because they'd read Resurfice and couldn't understand how the SCC got from the Athey and Walker world (good, plain, common sense 'burgers and root beer') to the Resurfice world (legal fictions and metaphysics). And here I thought the SCC meant what it said when it said it didn't like fictions and metaphysics.

Their discussion of material contribution in the UK context make it clear they understood that whatever it might have been before Fairchild and Barker, it is now a risk concept. That makes their review of Canadian jurisprudence even odder.

Regards,
David

--------------------------------------------------------------------------------
From: Lara Khoury, Prof.
Sent: September 18, 2007 8:58 PM
To: DAVID CHEIFETZ
Subject: RE: ODG: Causation in the NZCA

Dear David

Thank you for your comments on Ambros.

I first have one brief comment about your last sentence:

If you are right, not only is the CA mistaken, but it also read me completely wrong.

However, the absence of discussion of Athey’s material contribution may also be explained by the impression one gets that the CA felt – rightly or wrongly - that the material contribution (to the occurrence of injury) approach was not central to the resolution of the case. Indeed, in addition to Athey not being mentioned, the reference to material contribution in the UK context is very brief and not relied on in the final analysis. The CA’s insistence that the causal process involved in this case was alternative also points in that direction (see para 102 amongst others).

With regard to Snell, the CA appears to refer to this case mainly to support a distinction it is trying to make about the shifting of ‘evidential’ vs ‘tactical’ burdens of proof (discussed starting at para 57, and becoming relevant for the case at bar at para 81-82). However, you are right to stress that there are important nuances about Snell (and Canadian law) that are not made, especially at para 59 where the basis of the inference in Snell is truncated; and at paras 63-64 where Snell’s ratio is broadened and referred to as the “SCC’s approach”.

That leaves the question of whether the facts of the case warranted a discussion (and application) of the material contribution approach (in the Athey’s or the Resurfice’s sense ...) ...

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