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February 18, 2010


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Russ Brown

To clarify, the question being begged is: what does it mean for it to be "impossible" for the plaintiff to prove that the defendant's negligence caused the injury under the but-for test?

David Cheifetz

Not much there on causation in tort to spill ink about.

One conclusion entailed by para. 94 and 95 is that the Athey material contribution TO INJURY test is (legally) dead in the common law portions of the GWN. Canadian tort law now has only one test for factual causation: the but-for test.

One reason why Fullowka isn't going to be of much (if any) help on the meaning of Resurfice's "impossible" is that the reasons don't tell us whether the Court thought the evidence the plaintiffs adduced would have satisfied the but-for test had the trial judge applied it. Cromwell J specifically said he wouldn't deal with that issue [para. 96].

I am puzzled that Cromwell J would suggest in para. 95 that the plaintiffs' submissions that the evidence was enough to satisfy the but-for test"in effect demonstrate[d]" that it not impossible (that it was possible) for the but-for test to have been applied properly to establish factual causation. It seems to me that submissions, in themselves, demonstrate nothing more than the submitting party's belief. The content might demonstrate something. But we don't know what the Court though about the content. So, it seems to me that Cromwell J's assertion is meaningful only if one accepts that the evidence in fact (a) established but for or (b) the court concluded that it could have, or (c) that there was evidence which was not adduced but could exist which could have made made the whole of the evidence sufficient. But, given para. 96, I doubt that's what Cromwell J intended to imply.

I also wonder at the use of "generally" and "characteristics" rather than "requirements" in the 2nd sentence of para. 95, and "clear breach of a duty" rather than just "breach of a duty" in the penultimate sentence. On the whole, though, I suspect the judicial consensus will be that Fullowka does not alter (or explain) Resurfice.

Of course, I'll probably be accused of parsing the language too closely.

Gareth Morley

I find this case puzzling. Generally speaking, how can we ever know for sure that better investigation would have caught the bad guy? We are told to imagine an alternative world in which everything is the same except that the standard of care was met. (Although here the standard of care was met, so the alternative world is exactly the same as the mundane orb in which we reside.)

But who can say what that alternative world would be like? Whould Stephen Harper be Prime Minister if the South had won the Civil War? Would the Battle of Hastings have turned out the same way if Ceasar hadn't been assassinated?

I mean I like the works of Phllip K. Dick as much as the next guy, but it seems like a strange way to decide whether and which insurance companies pay widows and orphans.

Russ Brown

But that just goes to the mystery of the "but fot" test more generally, does it not? We contemplate what happened (the defendant omitted to take certain precautions, and the plaintiffs' relatives were murdered). Then we contemplate some fictitious (or at least alternative) universe (where the defendant did not omit to take certain precautions) and then consider whether the outcome would have been different (i.e. the plaintiff's relatives were not murdered).

Gareth Morley

Yes. Sometimes common sense equips us to more-or-less answer that question. But often it does not. And science never equips us to answer what would happen in alternative universes (or, rather, never gives us a single answer -- in the multi-worlds version of quantum mechanics, all those other universes exist).

In other words, we can either intuit what would have happened or we can't, but the whole thing is resistant to analysis.

David Cheifetz

Adopt the NESS (Necessary Element of a Sufficient Set) test. Then, it seems, you won't have to worry about the multi-verse.

David Cheifetz


You practice in BC. If the situation arises, what are you going to tell the BCSC or the BCCA the law is on factual causation? What the SCC said it is in Resurfice and now Fullowka, whatever that is? Or what BCCA said it is in Sam v Wilson & Chambers v Goertz - the reasons of Smith JA - if that is different from whatever it is the SCC might have meant?

Does Fullowka help us on the question of whether the SCC agrees or disagrees with the proposition that Resurfice mc IS NOT a test for factual causation?

Here's a nice twist, which I'm sure somebody in the SCC spotted and may help to explain why Fullowka refers to none of the appellate decisions discussing whatever it is that Resurfice mc means. The trial judge in Fullowka explicitly applied what he thought was the Athey material contribution test. But the SCC said that, in doing so, he applied the wrong test - not just that he applied the but-for test but did so wrongly. As you know, Smith JA's has written that that "material contribution" as it was used in Athey means the but-for test. If Smith JA is correct about the meaning of Athey material contribution, the the Fullowka trial judge applied the correct test (the but for test) he just didn't apply it properly.

However, the SCC also rejected the Fullowka appellants' argument that, regardless of the words he used, the trial judges findings of fact satisfied the but for test. [94] "In my view, the trial judge did not apply this “but for” test. The appellants' contention that he did cannot be sustained by a careful reading of his reasons as a whole. Failing to apply it is a reversible error."

So that covers off both aspects of the wrong test question.

So nobody quibbles, what Smith JA actually wrote, at para. 109 of Sam is: "'Material contribution', as that phrase was used in Athey v. Leonati, is synonymous with 'substantial connection, as that phrase was used by McLachlin C.J.C. above in Resurfice Corp. v. Hanke." The Resurfice reference is the first sentence of para. 23: "The 'but for' test recognizes that compensation for negligent conduct should only be made 'where a substantial connection between the injury and the defendant’s conduct' is present."


Gareth Morley

As a practicing lawyer, I am obliged to pretend that all binding authority creates a seamless web of coherent law-elucidating. I know it's not true and the judges know it's not true, but I suppose there are reasons for the fiction.

David Cheifetz

But that fiction, as often as not - my suspicion is more - ends up costing the litigants money it shouldn't, while lawyers and judges struggle with incoherence that should not exist; error that should not have occurred.

We're now more than 3 years post Resurfice. Look at what the BCCA had to say in Laidlaw v. Couturier, 2010 BCCA 59 at para. 36. I can show you more recent examples, including this year, of trial judges setting out causation law quoting Athey and using material contribution terminology as if Resurfice never existed. In fact, Resurfice isn't cited, justed Athey.

While I'd have expected that out of Ontario, given some of the comments of the ONCA, instead the recent examples are coming out of BC and Alta.

Recent cases where it seems that Athey material contribution is the basis upon which the trial judge found that the negligence caused the injury include

Adeshina v. Litwiniuk & Company, 2010 ABQB 80 at [632]

Shannahan v. Fraser Health Authority, 2010 BCSC 144 at [25]

Esau v. Myles, 2010 BCSC 43 at [37]-[38]

Gregory v. Penner, 2010 BCSC 22 at [144]-[148]

Tavakoli v. Junghans, 2009 ABQB 756 at [259]

The cites are for the passages where the judges set out the applicable law.

Applying the wrong test is appealable error. The appellate court will have to decide whether the error invalidates the result and requires at least a new trial. Plaintiffs can't assume the appellate courts are going affirm their wins by holding that there was no miscarriage of justice because the findings of fact amounted to but-for, even if the judge applied the wrong test.

An example of the new trial result is the recent Nattrass v. Weber, 2010 ABCA 64. The trial judge held 3 doctors liable. The ABCA dismissed the case against 2 of the 3 on the basis of no-duty. The trial judge had probably applied the but-for test for those two. For the 3rd, though? The ABCA concluded the trial judge applied material contribution. It explicitly rejected the argument that, despite what the judge actually said, her findings shold be treated as sufficient for but-for. The Court then declined to decide the duty issue and sent the case against this doctor, only, back for a new trial.

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