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From: DAVID CHEIFETZ
Sent: Thursday, October 04, 2007 1:42 PM
Cc: David Cheifetz
Subject: ODG - SCC Retreats from Resurfice?
Dear all:
Sit down for this. Read carefully. Don't be drinking.
Hill v. Hamilton-Wentworth Regional Police Services Board, 2007 SCC 41
per McLachlin, CJ
93 Recovery for negligence requires a causal connection between the breach of the standard of care and the compensable damage suffered. Negligent police investigation may cause or contribute to wrongful conviction and imprisonment, fulfilling the legal requirement of causal connection on a balance of probabilities. The starting point is the usual "but for" test. If, on a balance of probabilities, the compensable damage would not have occurred but for the negligence on the part of the police, then the causation requirement is met.
94 Cases of negligent investigation often will involve multiple causes. Where the injury would not have been suffered "but for" the negligent police investigation the causation requirement will be met even if other causes contributed to the injury as well. On the other hand, if the contributions of others to the injury are so significant that the same damage would have been sustained even if the police had investigated responsibly, causation will not be established. It follows that the police will not necessarily be absolved of responsibility just because another person, such as a prosecutor, lawyer or judge, may have contributed to a wrongful conviction causing compensable damage.
That's it. That's the discussion of causation in Canada. No mention of Resurfice. No mention of Walker. No mention of Athey.
Now go to the dissent in paras 175-179. Look at para 175. It seems as though the dissenting judges agreed with the majority on the meaning of but-for. The discussion in para 178 seems to amount to a rejection of some standard of causal connection less than that established by but-for.
Somebody might want to ask:
Did the SCC forget about the few words they'd said not so long ago in Resurfice?
What does this mean for Resurfice?
Does this mean that the SCC is retreating from Resurfice?
Does this mean that the SCC that Resurfice material contribution test is a test for actual causal connection?
Does this mean that the SCC thinks Resurfice material contribution is a test that, where satisfied, will be considered to produce a fictional finding of actual causation?
Has the SCC adopted Lord Hutton's position in Resurfice?
I suppose this means I'll have to update “Scraping”.
Oh well.
