The death of the Athey material contribution test?

One question that Resurfice v Hanke 2007 SCC 7 may or may not answer is the status of the Athey v Leonati material contribution test as a separate test for proof of cause-in-fact in tort. It appears that some judges of the BCCA think it is as dead as the proverbial Norwegian blue parrot: seee Sam v. Wilson 2007 BCCA 622 at paras. 107-110 and  Chambers v. Goertz, 2009 BCCA 358 at paras. 15-23. On the other hand, some judges of some other provincial courts may believe otherwise, that it is just resting: e.g., Barker v. Montfort Hospital 2007 ONCA 282 at para. 51 and its progeny.

 

I have suggested, elsewhere (one place is Cheifetz, "Tales of Sound & Fury" in Law Society of Upper Canada, Special Lectures 2008 Personal Injury (Irwin, 2009), 201) that the better interpretation of Resurfice is that the Athey version of material contribution (whatever that meant: another story entirely) as a separate test for cause-in-fact  is dead. I am aware of one article that explicitly argues that the Athey material contribution test survived Resurfice: M. H. Tse, “Tests for factual causation: Unravelling the mystery of material contribution, contribution to risk, the robust and pragmatic approach and the inference of causation” (2008), 16 Torts Law Journal 249. That view might be implicit in the recent article by Prof. Knutsen of Queens Law School: Eric Knutsen, "Clarifying Causation in Tort", http://ssrn.com/abstract=1448828.

What do trial judges think? More to the point, what are they doing?

I haven't seen, apart from the first few months after Resurfice, any trial decisions in which a trial judge explicitly claimed to be applying the Athey material contribution test because the but-for test was unworkable. At the most, what one sees, more rarely now, are cases such as Forde v. Inland Health Authority, 2010 BCSC 91 where the trial judge says something like

[176]   Causation may be proven in two ways – that but for the negligence of a defendant the plaintiff’s injury would not have occurred or that a defendant’s negligence materially contributed to a plaintiff’s injury:  Athey v. Leonati, 1996 CanLII 183 (S.C.C.), [1996] 3 S.C.R. 458.

but then goes on to find the plaintiff failed to satisfy the but-for test and, as to the material contribution test, says that that test was not applicable using Resurfice terminology. So, in Forde - which, for whatever reasons - does not mention Chambers, Sam, or any BCCA decision on the meaning of Resurfice -  we have

[186]   Given these conclusions, assuming that the Defendants were negligent, the evidence falls short of proving that but for their negligence Mrs. Forde would not have been injured.

[187]   As far as the material contribution test is concerned, it is not applicable to the circumstances of this case.  This is not a situation in which it is impossible to prove negligence using the “but for” test.

In addition, I haven't seen any cases dismissed on failure to prove cause-in-fact grounds with the judge saying that, prior to Resurfice, the plaintiff would have established cause-in-fact under the Athey material contribution test.

I mentioned Healey v Lakeridge Health Corp 2010 ONSC 725 in yesterday's posting. Consider what Perrell J. wrote about the cause-in-fact issue.

[240]  The legal standard for causation-in-fact is the “but for” test. The Uninfected Persons members must show that “but for” the Defendants alleged negligence, they would not have suffered their psychological injuries. See Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), [2007] 1 S.C.R. 333.

[241]  For all of the affiants, there were other possible reasons for them to be suffering psychological injuries at the time that they received the notice of exposure to TB, and in my opinion a trial would be necessary to determine the difficult question of whether but for the notice they suffered compensable psychological injuries.

Doesn't that sound like a paradigm of the situation where the Athey material contribution test would have been applied before Resurfice? However, Perell J didn't mention any flavour of a material contribution test. Yet, Perell J., of course, is bound by the decisions of the Ontario Court of Appeal. So, if the Athey material contribution test as a test for cause-in fact still exists, shouldn't he have mentioned it?

On the third hand? That would ultimately be what the SCC has to say about the matter, whenever it next does so. The Supreme Court may answer some of these questions when it renders its decision in the appeal from Fullowka v. Royal Oak Ventures Inc., 2008 NWTCA 4. The appeal was argued in May 2009. Or it may not.

Comments

[Russ Brown]

They might use Fullowka to "clarify" matters, they may not. Resurfice (at least until the ABCA got ahold of it) was not generally seen as a causation case, no?

[David Cheifetz]

Yeah, Resurfice wasn't.

And the SCC won't have to if they decide to affirm the NWTCA decision on the (lack of) duty of care basis.

(Those interested in a discussion of the factual causation issues in Fullowka will find one at pp. 280-298 of my article at http://www.bbburn.com/articles/Resurfice_status.pdf).

[Marnie Tunay]

'fifteen years old.' That IS his mental age, probably. His mind is frozen in time.
This is my fault. He followed me here in the first place. He doesn't mean any harm. With the above, he's trying to make us laugh, that's all.

But no matter what I say, I'm just making it worse for this blog:

I draw a line in the sand - and he makes a circle out of it.

One of us has to leave, and it looks like it's gonna have to be me.

I appreciate the hospitality that was afforded to me on this blog - and the kindness you've all shown to monkey-boy there.

Good luck with your exams, Jim. Hope your India sojurn is safe and illuminating, Graham. Best wishes to Russ, Stephen, Moin - and, especially, to David Cheifetz! who has been, (if he doesn't mind me saying so), bearing up magnificently under the strain of having his last nerve trod upon by commentators. People can surprise you sometimes.

I'm not even planning to come back here to read the blog. It would be too tempting to run my yap again.

I'll miss the blog. It's the only one I read regularly, now, and it's a real loss for me.

Sayonara, people.

[Marnie Tunay]

I just dropped by to say:
You've been a very good sport, David Cheifetz. I realized today that I owed you one for that.
That's all I wanted to say.
Feel free to strike this comment for not advancing the blog-post any. :-)

[David Cheifetz]

Thank you.

[JOBS_frend]

The new year is already knocking at the door, let it will bring only happiness and joy.