Dear Colleagues:
The causation discussion starts at [43] in the majority reasons.
The majority at [46-47] appear to assert that "materially contributes" or "material contribution" as used in Athey - the majority judges use the orthodox more than de minimis meaning - is to be understood as both (1) a statement of what amounts to a historical factual cause and (2) a limitation on the meaning of what amounts to a legal factual cause.
[46] Athey is the multiple causes precedent, and it confirms that the tort cause need not be the sole cause, so long as it “materially contributes”. In Athey, the Supreme Court of Canada confirmed that in multiple cause cases the law does not apportion among causes. The Supreme Court of Canada placed a de minimis limit on the implication of the tort cause by saying it must at least “materially contribute” to the loss to be part of the legal equation.
[47] In Resurfice the Supreme Court of Canada confirmed that the “but for” test is the presumptive legal test, and confirmed an exception where it is impossible for the plaintiff to prove causation to the “but for” standard. Unfortunately that exceptional rule is also called “materially contributes”, leading to potential confusion. In Athey, de minimis or “non\u8209 -material contribution” is an exception to liability where several causes contribute to the damage. It could be described as a type of de minimis defence or limit on liability. In Resurfice, “material contribution” is an exceptional alternative standard of proof that can sometimes be used to prove causation.
It's probable that the plaintiffs will seek leave to appeal to the SCC. They succeeded completely at trial. The Alta CA dismissed the case completely against 2 of the 3 defendant doctors on the basis that they were not negligent. The CA sent the case back for a new trial against the 3rd doctor on the basis that the trial judge applied the wrong test: a "material contribution" test rather than the but-for test. The CA rejected the argument that the findings of fact made by the trial judge should be taken to satisfy the but-for test.
The Alta CA was not dealing with overdetermined injury so we still don't have an answer, in Canada, as to how but-for applies (if but-for is the applicable test) where the injury is overdetermined. Actually we don't have an answer to what the test is for overdetermined cases, if one assumes (contrary to what is in Nattrass) that the Athey material contribution test (as a separate test) was intended to be a separate test for causation and was intended to apply to overdetermined causation.
For those not interested in causation, the case has a useful discussion on standard of care and breach issues (in both the majority and dissenting reasons) where the doctor's position is compliance with the accepted practice at the relevant time.
As indicated, there is a dissent. The dissent disagrees with the majority on both the standard of care / breach issue and the causation issue. On the latter, in a brief discussion [32] the dissent applies the Resurfice material contribution test to the claim against the 3rd doctor holding that facts satisfied the two Resurfice requirements.
I believe this to be only the 2nd time an appellate court has applied Resurfice material contribution. I do not know what it means that it was the Alta CA both times.
As has become the unfortunate practice in this country, the Alta CA's discussion of causation law and "material contribution" does not mention any of the appellate decisions of any of the other provincial or territorial courts.There is a body of analysis in the BCCA that ought to have been referred to. I'm sure the Alta CA was aware of those cases. The reasons - dated February 26/08 - also do not refer to Fullowka (released February 18). I guess that's because the panel concluded there is nothing in Fullowka, on causation, that they needed to mention.
Cheers,
David Cheifetz