I wonder how 3 judges of an appellate court, particularly the BC CA given its current jurisprudence, could miss the fact that Eric Knutsen's analysis is based on the premise - or at least the better interpretation of the analysis is - that Resurfice material contribution DOES produce a conclusion of factual causation on the balance of probability. An essential basis of the BC CA's analysis is that Resurfice material contribution is NOT a test for factual causation. That difference wouldn't prevent the court from adopting some aspect of Eric's analysis if it was nonetheless helpful, but you'd expect them to explain what they'd done and why.  

 

One red flag - that BC judges, at least, ought to have spotted at least this and considered what it means - is that the paper doesn't mention the BCCA's own, very recent, Chambers v Goertz or even its recent enough predecessor Sam v. Wilson. That absence, and the fact that the panel did not acknowledge the premise I've referred to, makes me wonder who read what and how the panel learned of "Clarifying". I'd hazard some enterprising enough research lawyer. This highlights the saw about the dangers of too little knowledge.

 

When all is said and done, the ratio of Clements is this:  the mere fact that plaintiff is able to satisfy the two specific Resurfice material contribution criteria is not enough to trigger the application of the doctrine. It still has to be "just plain wrong" - Eric's plain language explanation of the meaning of the SCC's "basic notions of fairness and justice" for the defendant to escape liability - assuming the plaintiff is able to satisfy all the other requirements of the cause of action - merely because the plaintiff can't establish factual causation on the balance of probability using but-for. What the BC CA seems said is that it wasn't just plain wrong because the Clements case was, in substance, no different from the legion of other cases where the plaintiff is unable to marshall the evidence required to establish but-for on the balance (see para . 64 of the Clements reasons. If it was plain wrong, then all of those other cases should trigger material contribution and the SCC certainly didn't intend that. It's not a coincidence, I think, that the BCCA echoed a rationale that the SCC used in Resurfice in explaining why the Alberta Court of Appeal was wrong - the manner in which material contribution was used, if correct, "would substantially alter the existing law and would have the effect of displacing but-for as the primary test for determining causation. (para. 48)

 

Still, as I've noted in various places, all that has happened, in practice, since Resurfice, is that the results of actions is no different. Plaintiffs aren't losing actions on causation findings that they would have won before Resurfice. Rather,  trial judges are using but-for language to justify the conclusions that, before Resurfice, they almost certainly would have framed in Athey material contribution language. What does that tell us? I could speculate, but I won't since I'd probably say something I'll regret putting in print. I am aware of only one reported case in which a trial judge found that the plaintiff had established factual causation on the balance of probability under but-for AND that, before Resurfice, he would have used Athey material contribution to make that finding in favour of the plaintiff. (Frazer v. Haukioja 2008 CanLII 42207 at para. 215-222 (Ont SCJ) affirmed 2010 ONCA 249). 

 

 

 

Finally, I see that I left the "not" out of the penultimate paragraph in my first message. I meant to write 'has not made a whit of difference". I didn't mean to write that the whit of difference Resurfice has made is to increase lawyers' billings. It just worked out that way.

 

Cheers,