Dear Jason,
My sympathies.
Certainly if what you mean by "globally" is that the evidence was enough to establish but-for causation as against each of at least one or more the suppliers ignoring all of the others when one considers the sufficiency of the evidence for the purpose
of a but-for decision based on "necessity". This is the pointing the finger example that Clements uses.
However, I think that as Clements is written, there's a "no" answer to a different meaning of "globally".
If what you mean by globally is that (on the evidence) it had to be one or more of the group, but not all, because (on the evidence, in the circumstances, or simply because that's the assumption on which the case was argued) the evidence sufficiently eliminates
anyone else, but the evidence isn't even enough (when applied to any one of the group, or to all) to allow the differentiation required for but for finger pointing?
Is that instance actually in the Clements explanation? I'm sure the panel thought it is. And intended to be. I doubt it actually is if one takes the Court's analysis at face value and applies ordinary logic. (Of course one might claim that a robust application
of common sense requires one to one to conclude it is. One might also claim that Athey said nothing about material contribution to injury.)
The problem of logic and language is stark in the Court's explanation of its version of material contribution.
Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (a)
the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the
possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.
In the second scenario, the evidence doesn't satisfy (a) but does (b).
However, I am sure that in due course the SCC will correct this oversight in Clements too. Let's hope it doesn't do so by telling us it never existed.
The second instance is within Fairchild. It was, in fact, on the evidence at least one explanation of the problem that the Fairchild evidence presented as mesothelioma causation was then understood.
But the SCC's explanation isn't Fairchild's.
Cheers,
David
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,
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Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)
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