Dear Colleagues:

 

I was just looking at Clements v Clements again for the first time in a few years and it occurred to me that given the way that the SCC frames the test of causation for material contribution to risk, there would be liability on the facts of Sindell v Abbott Laboratories if that occurred in Canada.  Each individual plaintiff would be able to establish (a) she suffered loss that would not have occurred “but for” the negligence of the drug companies taken globally in the marketing the drug; and (b) the plaintiff through no fault of her own would be unable to show that any one of the possible tortfeasors was a but for cause of her injury, because each company could point to the others as a cause of the injury. This process of reasoning could be repeated by each of the potential plaintiffs (which could number in the thousands or more).  The SCC test appears to be even easier for the plaintiff than that in Sindell since there is no requirement that all the potential tortfeasors be before the court or even that the tortfeasors chosen to be sued represent a substantial percentage of the possible tortfeasors.

 

I just wanted to check that others would agree with this analysis and that I haven’t missed anything in Clements or any subsequent SCC case that would foreclose this type of analysis.

 

Sincerely,

 

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)