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From: Russell Brown <rsbrown@ualberta.ca>
To: DAVID CHEIFETZ <davidcheifetz@rogers.com>
Cc: obligations@uwo.ca; Neil Foster <Neil.Foster@newcastle.edu.au>
Sent: Fri, February 19, 2010 7:53:37 AM
Subject: Re: ODG: Fullowka v Pinkerton's - Duty to prevent crime

To the extent that Fullowka becomes authoritative for anything relating to cause-in-fact, I expect it will be for the proposition that the test propounded in Resurfice v. Hanke is to be applied sparingly.  It still begs the question of when the threshold of "impossibility" is met, but one assumes they'll know it when they see it.

Russ




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

> On the causation issue, only -
> 
> Apart from what (I think) both cases entail - the death of the Athey material contribution to injury test as a separate test for proof of factual causation in tort - Resurfice and Fullowka clarify Canadian common law in the same sense that Humpty's discussion with Alice in Looking Glass clarifies the meaning of words. The SCC is "master - that's all."
> 
> If there's a saving grace in the content of the brief discussion of factual causation in Fullowaka, it's in the Court's decision to completely ignore the content of the NWTCA's discussion, beyond agreeing with the NWTCA that the test that the trial judge had applied was the Athey material contribution (to injury) test.
> 
> While I doubt that the SCC intends anything said in Fullowka to alter whatever Resurfice means, the language in para. 95 of Fullowka is surprisingly and unfortunately casual. I  wonder at the use of "generally" and "characteristics" rather than "requirements" in the 2nd sentence, and "clear breach of a duty" rather than just "breach of a duty" in the penultimate sentence. A breach is a breach is a breach, no?  
> 
> It's also surprising that, in para. 95, the Court would imply the evidence could have been sufficient to satisfy but-for when, in para. 96, it specifically declined to discuss that issue. The apparent assertion in para. 95 that the mere fact that a plaintiff argues that the evidence is sufficient for but-for is, of itself, somehow evidence that it is possible to validly use but-for to establish factual causation is wrong. I doubt the Court intended to assert that the mere fact the plaintiff argues that the evidence is sufficient for but-for is conclusive that it is possible to use but for and that, therefore, the Resurfice material contribution to risk test doesn't apply. Since the reasons don't tell us what the evidence was or was not sufficient for, and why, on the issue of factual causation,  the statement that "It was not impossible to prove causation to the ?but for? standard." [para 95] is a conclusion without any stated basis.
> 
> On the whole, though, I expect the judicial consensus will be that Fullowka does not alter (or help to explain) Resurfice. I think that is correct.
> 
> David Cheifetz
> 
> 
> 
> 
> 
> 
> ________________________________
> From: Neil Foster <Neil.Foster@newcastle.edu.au>
> To: obligations@uwo.ca
> Sent: Fri, February 19, 2010 12:52:10 AM
> Subject: ODG: Fullowka v Pinkerton's - Duty to prevent crime
> 
> 
> Dear Colleagues;
> A brief note of a case which others on this list are more qualified to comment on in detail. In Fullowka v. Pinkerton?s of Canada Ltd., 2010 SCC 5 (!8 Feb 2010) http://scc.lexum.umontreal.ca/en/2010/2010scc5/2010scc5.html the Supreme Court of Canada (a unanimous decision of the Full Court delivered by Cromwell J) held that
> (1) a security firm and the Territorial government mines inspectorate both owed a duty of care to miners who were killed when a rogue striking miner planted a bomb in the mine;
> (2) however, neither the firm nor the government had breached that duty of care in the circumstances of the case.
> (3) The trial judge had erred in not applying the "but for" test of causation; at [93] we are told that the earlier decision of the SCC in Resurfice "clarified the law of causation, holding that absent special circumstances, the plaintiff must establish on the balance of probabilities that the injury would not have occurred but for the negligence of the defendant". I suspect some people on this list may have problems with that "clarification" of Resurfice! Para [95] goes on to tell us in what circumstances "the test for causation should be relaxed to the ?material contribution? standard". None were present here.
> (4) The local union branch was a separate legal entity to the national union. The national union could not be held to be vicariously liable for the actions of the local branch. There is an interesting discussion at [142] indicating that the issue of vicarious liability under the law of Canada should be analysed in a "two-step" process (where previous authority does not hold that a relationship creates vicarious liability), the first of which is to see whether the relationship between the tortfeasor and the putative defendant is "sufficiently close" in light of the policy reasons for imposing VL. While this in itself is interesting, a further level of complexity is added when it becomes apparent that it is not simply a matter of seeing whether there is a generic relationship, but that the "sufficient closeness" may also descend to the circumstances of the particular case. Thus while discussing in [149] whether unions are generally vicariously liable for
>  the wrongs of their members (unsurprisingly, I would have thought, the answer is, No), in [150] the discussion offers as a further reason for rejecting VL that the particular relationship between this union and the alleged wrongdoers was not "sufficiently close".
> (5) Nor where there a "common design" between the union and the bomber to make this a case of "joint tortfeasor" liability.
>  
> Perhaps just a brief comment on the duty of care issue. While the ultimate finding exonerates the security firm and the government, I would have thought this aspect of the decision will disturb both sorts of entities for the future.
> Naturally there was general foreseeability of harm by both Pinkerton's and the government if they failed to undertake their duties carefully. It was the second stage, proximity, analysis that was crucial. Pinkerton's had undertaken to exercise control over the area; the miners were "relying" on them doing their job properly. These factors led to a duty of care for the security firm- see eg [34].
> What about the mines inspectorate? There was no doubt they had statutory obligations in relation to mine safety. Again this is one of those cases that I think probably illustrates the points that Lewis has been making about the role of statute in defining a duty of care in negligence in Canada. Yes, Canadian courts cannot hold since Saskatchewan Wheat Pool that there can be a civil action for breach of statutory duty based on the statute alone. But instead the courts use the statute to create a duty in negligence.
> We are told that in a case like this the "statute is the foundation of the proximity analysis"- [39]. Reasons for the statute to create a duty here included that the miners were a "clearly defined group"- [43]. The duties related to the conduct of the miners- [45]. A series of cases holding that building inspection statutes created a duty of care could not be relevantly distinguished.The "duties provided for in the MSA and Regulations have as their object the protection of workers from the acts and omissions of others"- [53]. {Some may notice the similarity between these considerations and the rules applied by other courts around the Commonwealth as to whether a breach of statutory duty action is available.}
> So in the end the relationship between the inspectors and the workers was "sufficiently close and direct" for a duty of care to exist-[55]. The "residual policy considerations" were not sufficient to negate the duty.
> Regards
> Neil F
> 
> Neil Foster
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