Date: David Cheifetz

From: Sun, 6 Apr 2008 12:45

Subject: Canadian Causation Conundrum: Resurfice & Athey

Dear Colleagues

Amidst the deafening silence, I'll provide one approach to determining a formally valid answer to my (somewhat restated) questions: Does Resurfice contemplate another test other than but-for for cause-in-fact? Does the Athey material-contribution-to-injury test still exist?

The approach is as follows.

1. Can we identify cases decided in favour of the plaintiff on an Athey material-contribution basis before Resurfice that would not be decided in favour of the plaintiff now? We are not concerned with “why”, yet, just the result. Remove from the set of cases all of the cases, if any, which we now believe would be decided against the plaintiff. Call the larger set of cases that remains “Set A”.

2. Examine Set A (cases in which the plaintiff succeeded) for any cases that would now be decided in favour of the plaintiff by applying the Resurfice material-contribution contribution test. They are supposed to be “exceptional cases” so there should not be that many. Remove those cases. Call what is left “Set B”.

3. Examine Set B. On what basis would the finding of cause-in-fact be made in favour of the plaintiff, now, in each of those cases? If the answer is the but-for test, then the rhetorical question is: “what changed about the facts that makes the but-for test validly applicable, now, when it was not validly applicable before February 8, 2007?".

If there are no cases left, then the Athey version of the material-contribution-to-injury-test no longer exists. However, if there is at least one case where you have a finding that cause-in-fact exists which is a finding that is not valid under but-for as it is presently understood, then there has to be another meaning of the but-for test or another test for the existence of cause-in-fact, if this issue was correctly decided in the plaintiff’s favour.

I don't think Resurfice provides an answer to the first question because, with all due respect, I see nothing in the reasons to indicate that the panel thought the issues through adequately. They might well have. But, if they did, they chose to not help the profession at all.

Similarly, Resurfice is no help on the second, unless one assumes that the court's failure to explicitly write something like "the Athey version of material-contribution is no longer good law" means anything more than that the court didn't write something like that explicitly. I doubt the panel considered that anybody would parse their analysis to this extent.

I think an explanation (but not answer) lies in Lewis Klar's judges "will strive to fashion a just solution in this type of case to allow a wronged plaintiff to recover. Courts will not allow wronged plaintiffs to fall between the cracks due to the formal requirements of proving cause” (Tort Law, 3d, at 400).

Cheers
DC

----- Original Message ----
From: DAVID CHEIFETZ
Sent: Friday, March 28, 2008 11:55:07 PM
Subject: Canadian Causation Conundrum: Resurfice & Athey

Dear Colleagues

Some of you know I'm giving a lecture, next week, in Toronto, on the some of the consequences and implications of Resurfice to factual causation in Canadian negligence law.

I'd like to run a straw poll, here, on the membership's views of the status of the Athey version of the material-contribution test post Resurfice. What follows is what I think is a list of everything in Resurfice that might be relevant to whatever analysis one makes to arrive at one's conclusion.

  

Cheers,
David Cheifetz

  

_____________
Resurfice on tests for conduct as cause of injury: Does Resurfice contemplate another test other than but-for for this sort of misconduct. Does the Athey material contribution test still exist?

1. What does para 29 of Resurfice mean to the status of the Athey version of material contribution? (There are some BCSC cases that imply it still exists; however a recent BCCA case implicitly defined that test out of existence.)

2. Resurfice para 29: “In this case, the Court of Appeal erred in failing to recognize that the basic test for causation remains the “but for” test. It further erred in applying the material contribution test in circumstances where its use was neither necessary nor justified.”

3. The material contribution test the Alberta CA applied was the Athey version, not the new Resurfice version.

4. The Supreme Court of Canada merely says the Alberta CA erred “in applying the material contribution test in circumstances where its use was neither necessary nor justified”. That test was the Athey version, not the Resurfice version.

5. The SCC did not say that the Athey version no longer exists. What does this silence mean?

6. Is it implicit in paras 21-28 of Resurfice, 2007 SCC 7, that the Athey version no longer exists?

7. Athey is cited in para 22 as authority for the proposition that tests other than but-for may exist, but there’s no mention of the type of test.

8. It would have been very easy for the SCC to say in paras 21-28 that the Athey version of material contribution is no longer good law. Yet the SCC is completely silent.

9. Oversight? Or did the SCC expect us to recognize that by defining the material contribution test in risk terms we should understand that the Athey version is defunct?

10. Is there room for another flavour of test that determines whether conduct is a cause of injury?

11. The SCC did not say that but-for is the only test for establishing that conduct is a factual cause. It said that but-for is the “basic test” (para 21) and the “primary test” (para 22) and “as stated in Athey, the “general but not conclusive test” (para 22).

12. Para 24 does not state that the new material contribution test is the only exception (variation) to the traditional but for test: It says only that “in special circumstances, the law has recognized exceptions to the basic ‘but for’ test, and applied a ‘material contribution’ test”. Can’t read this to mean SCC saying that material contribution is the only exception (variation).

13. So, all of these phrasings (could) leave it open that there is another test for conduct that is a cause of injury.

14. If the SCC did not mean to eliminate the Athey version of material contribution, then in what circumstances where the facts could allow a conclusion that the conduct is a factual cause of injury is the Athey material contribution to be used (or some other test) rather than the but-for test (as explained by Snell?)

15. Note that Sam v. Wilson (BCCA) has recently defined ‘substantial connection’ to mean more than de minimis, so combined the Athey material contribution and traditional but-for into one test. This is certainly wrong if Athey still exists as separate version of a test establishing factual causation.

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