----- Original Message -----

From:  DAVID CHEIFETZ

To: obligations@uwo.ca

Sent: Sunday, January 10, 2010 10:41 PM

Subject: A slight Canadian whine

Dear Colleagues,

 

For those interested in causation issues and who didn't already know, or haven't seen the paper in draft, Jane Stapleton's "The Two Explosive Proof-of-Causation Doctrines Central to Asbestos Claims", 74 Brooklyn Law Review 1011 (2009) is now on SSRN. The URL is  http://ssrn.com/abstract=1532516  

 

The slight Canadian whine is that Jane chose not to mention, even in passing, the recent Canadian common law "doctrinal" developments in proof of causation, in tort, based on material increase in risk that parallel her topic. As the Canadian lawyers on this list (and some of the rest of you) know Canadian common law, as a result of Resurfice v. Hanke,  2007 SCC 7 now has a fault and material-increase-in-risk test for proof of causation that may well be coupled to joint and several liability.The Supreme Court did not discuss the issue. As well, there has been no suggestion of proportional (several) liability - actually, no discussion of the solidary (joint) or proportional (several) extent of liability issue at all - in the few instances where that new test has since been applied. Canada's default rule for indivisible harm is the common law solidary (joint and several) rule. That rule has been applied without discussion.

 

Perhaps Jane wisely concluded that she was unable to find anything in the Canadian developments that might even be possibly useful to her intended US audience. If so, I wholeheartedly agree, for reasons I have detailed elsewhere.   

 

In any event, as I said, my whine is slight and I commend the article to anyone interested in the area who hasn't yet read it.

 

If anyone wishes to read my assessment of the current Canadian situation (circa June 2009), send me an e-mail offlist. I'll send you a copy of a paper I handed out at last summer's causation conference in Edinburgh.

 

Happy New Year to all,

 

David Cheifetz