Date: Fri, 1 Feb 2008 01:25

From: David Cheifetz

Subject: Still More Canadian Causation Follies

Neil,

Except that, if we take the SCC to have intended what it said in Resurfice, Canada only has two tests, but-for and the Canadian version of a new test called the material contribution test. The latter is whatever it is but it isn't a test which results in finding of factual causation - because it applies only where the but-for test cannot apply - and allows the court to "impose liability" assuming all of the other criteria for the tort (other than causation) are satisfied.

As to what but-for means, the SCC in Resurfice nowhere equated but-for cause with any meaning of material contribution. Rather, the SCC said a but-for cause is a substantial connection.

22 This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati, at para. 14, per Major J., “[t]he general, but not conclusive, test for causation is the ‘but for’ test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant”. Similarly, as I noted in Blackwater v. Plint, at para. 78, “[t]he rules of causation consider generally whether ‘but for’ the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities.

23 The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and the 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.

The SCC then segued into the discussion of the material-contribution-risk test as distinct from the but-for test, commencing at para. 23. Whatever that discussion is, it has nothing to do with the meaning that the House of Lords gave to material contribution in Bonnington (whatever that was), assuming it survived Wilsher. In any event, there's a recent English Court of Appeal decision - I'll find it when I get home - saying that that other meaning of material contribution in Bonnington, whatever it is, if it was some test other than but-for, is no longer good law in England. I think I've paraphrased that right.

As I pointed out somewhere in “Scraping”, some time ago - that thing is pushing at 125,000 words even after I eliminate duplicated quotations used for convenience and my more than occasional failed attempts at humour - the BC situation was getting odd. That included at least one trial decision in which the trial judge seemed to think that Athey's version of material contribution - whatever that meant - survived Resurfice. And the BC situation is getting is getting odder. Read the recent Bohun v Segal 2008 BCCA 23, read between the lines, and say "what"? Or wait until I dissect it in the next version of “Scraping” which will be up in a few days.

Apart from that, stare decisis and the pecking order in the Canadian judiciary being what it is, and Canadian constitutional law being what it is, BC trial and appellate judges may have the technical power to ignore what Resurfice said Canadian law now is since it wasn't a decision on appeal from the courts of British Columbia. I'm not sure of the answer to that question, now, but I do recall there was at least on case in Ontario, after the SCC changed the common law rule for when limitation periods start to the discoverability rule, in which a trial judge said he'd follow an older Ontario Court of Appeal precedent rather than the recent SCC case which came from another province. You can guess what happened on appeal. Of course, I suppose that the BCCA has carte blanche to run with its own interpretation of Resurfice until the SCC says otherwise and, surprise surprise, the SCC is busy denying leave to appeal any case where the causation issues are raised. In any event, the SCC certainly didn't suggest in Resurfice that it was speaking only about Alberta law. At some point that sort of technical dance will catch up with somebody in costs and legal fees, big time.

So, to be precise, were I a BC lawyer I'd say that I don't know with sufficient certainty - that's enough certainty to be able to tell clients we can tell a trial judge that this is what the appellate law in BC means - what BC law actually is on but-for. The same applies for the new material contribution test. (That's why I told you to read Bohun and read between the lines. Then compare it to the BSA Investors case. Or, as I said, wait a few days until the next version of “Scraping” is up.) I'd say I'm not even sure what the BCCA, as a whole, thinks that BC law is on both tests.

That's why it's good to only be an Ontario lawyer. Here, we have the Ontario CA saying Resurfice didn't change the law at all, only clarified it. (A later Ontario CA decision from a different panel might have doubted it, in an aside buried in a footnote, but we won't mention that.)

Regards,
David

----- Original Message ----
From: Neil Foster
To: DAVID CHEIFETZ
Sent: Thursday, January 31, 2008 5:39:19 PM
Subject: Re: Still More Canadian Causation Follies - the return of de minimis and Athey's material contribution meaning

Dear David and others

So as I read paras [108]-[109] of Sam v Wilson, the BCCA view is that the phrase "material contribution" has two meanings in Canadian causation law:

(1) What I would call the orthodox, Bonnington Castings, meaning - described at [108]: "each tortfeasor is jointly and severally liable with the others for the whole of the damage so long as his acts or omissions made a material contribution beyond de minimis to the damage".

(2) However, when the word "test" is added, the phrase "material contribution test" means the situation referred to in Resurfice where the ordinary "but for" test cannot be satisfied - see

[109] Material contribution, as that phrase was used in Athey v. Leonati, is synonymous with substantial connection, as that phrase was used by McLachlin C.J.C. above in Resurfice Corp. v. Hanke.  This causal yardstick should not be confused with the material contribution test.  As McLachlin C.J.C. explained in Resurfice Corp. v. Hanke, at ¶¶ 24 - 29, the material contribution test applies as an exception to the but for test of causation when it is impossible for the plaintiff to prove that the defendant’s negligent conduct caused the plaintiff’s injury using the but for test, where it is clear that the defendant breached a duty of care owed the plaintiff thereby exposing the plaintiff to an unreasonable risk of injury, and where the plaintiff’s injury falls within the ambit of the risk.

So to be precise British Columbia lawyers, at least, have to specify whether they mean "material contribution" simpliciter or "the material contribution test" in the Resurfice sense.

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