I will say this much for the majority:  at least it (unlike the SCC)  

recognizes that Athey and Resurfice did not each pronounce the same  

test.  Plaintiff's counsel told me shortly after the ABCA hearing that  

Slatter JA gave him a hard ride on the meaning of "material  

contribution" (in Resurfice).

Of course, the difficulty remains that we still lack objective  

criteria for when resort may be had to the Resurfice test.

Prediction:  if leave to appeal is sought, it will be refused.

Russ

Quoting "DAVID CHEIFETZ" <davidcheifetz@rogers.com>:

> Dear Colleagues:

>

> Those you interested in the subject may find Nattrass v. Weber, 2010  

> ABCA 64  

> http://www.canlii.org/en/ab/abca/doc/2010/2010abca64/2010abca64.html interesting reading. It's another medical malpractice case with causation and standard of  

> care issues.

>

> 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?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 toFullowka (released February 18). I guess that's because  

> the panel concluded there is nothing inFullowka, on causation, that  

> they needed to mention.

>

> Cheers,

>

> David Cheifetz