The Supreme Court is scheduled to hear the appeal in Clements (Litigation Guardian of) v. Clements, 2011 BCCA 581, reversing 2009 BCSC 112; leave to appeal granted 2011 CanLII 36004 (SCC) on February 17, 2012. The Supreme Court’s summary of the issues in the appeal suggests that that all the Court was asked to do is clarify the meaning of the Resurfice material contribution test for proof of the causation requirements in causes of action in negligence and, then, determine the correct result in Clements based on that test. See
That is an accurate enough summary of what was in Ms. Clements (the appellant’s) leave to appeal factum. It is not an accurate summary of what is in her factum. The appellant (Ms. Clements) has explicitly asked the Court to decide if the causation issue ought to have been decided in her favour on the bases of the but-for test, in particular the “robust, pragmatic, common sense” approach mandated by Snell v. Farell [1990] 2 S.C.R. 311, 1990 CanLII 70. The parties’ factums are available on the Supreme Court’s web site. That is not a problem because the Supreme Court’s mandate, having granted leave, is to make the decision that ought to have been made by the lower court from which the appeal comes; or order a new trial if that is the proper decision (if the decision appealed from was “against the weight of the evidence); or remand the appeal or any part of the appeal to the court appealed from for additional consideration in accordance with the direction of the Court: the Supreme Court of Canada Act, R.S.C. 1985, c. S-26, ss. 44-46.1.
The Supreme Court panel in Clements could have three judges who were appointed to the Court after Resurfice was decided. It will if the panel is the full 9 member court. It will have at least 1 new judge if the panel is composed of seven judges. Justices Cromwell, Moldaver and Karakatanis are the new appointments. Justices Bastarache, Binnie and Charron have retired. Only Justice Cromwell has expressed a judicial opinion on the meaning of Resurfice in reported reasons for judgment. Only Chief Justice McLachlin and Justice LeBel J. remain from the panel that decided Walker Estate v. York Finch Hospital, [2001] 1 S.C.R. 647, 2001 SCC 23. Only McLachlin C.J. remains from the panels that decided Snell and Athey v. Leonati, [1996] 3 S.C. R. 458, 1996 CanLII 183.
A colleague’s comment about the granting of leave in Clements was “here we go”. My immediate reaction was to add “again”. I hope I am wrong.
Since, I'm talking to myself on this subject, as often as not where practitioners are involved, let's continue the bad(?) habit. I'm going to mention a number of points I've made elsewhere.
1. Between late 1996 and early 2007, Canadian tort jurisprudence formally had, at least based on an (ahem) "common sense", grammatical, ordinary, plain etc. etc. reading of Athey, an alternative method for establish factual causation (cause-in-fact) on the balance of probability. It was something called the Athey material contribution test.
2. The Athey material contribution test was, again on a grammatical etc. reading of Athey, applicable only where the but-for test was unworkable. That if too often seems it wasn't used that way may now be a moot point. It wasn't by the Alberta Court of Appeal in Resurfice, which is probably a good part of the reason the SCC granted leave to appeal. It also helped, I'm sure, that the ABCA claimed it was applying the SCC's own words in Walker Estate v. York Finch Hospital, in declaring that the Athey material contribution test applied, not the but-for test, but that's likely water under the bridge, at least for now.
3. Regardless of anyone's views on the vacuity of the Athey material contribution test – many academic lawyers and at least one practitioner might have gone on too long about this – it was used more than once by judges (trial and appellate) deciding tort cases across common law Canada. It found its way into the causation tests in statutory compensation regimes such as the provincial workers' compensation schemes and motor vehicle statutory accident benefit schemes, too.
4. For Ontario, a Court of Appeal decision in late 2006 (where leave to appeal was denied by the Supreme Court after the release of Resurfice, provided an explanation of the meaning of Athey's "unworkable". In Aristorenas v. Comcare Health Services, 2006 CanLII 33850 (ONCA)the majority wrote in para. 53:
Thus, it would seem that the “material contribution” test is applied to cases that involve multiple inputs that all have harmed the plaintiff. The test is invoked because of logical or structural difficulties in establishing “but for” causation, not because of practical difficulties in establishing that the negligent act was a part of the causal chain.
I suggest it is probable that the dissenting judge agreed on this point at least because the dissent was "merely" on the question of whether there was sufficient admissible evidence to support the trial judge's decision.
5. Again, at least in Ontario, Athey resulted in the Court of Appeal declaring that the Athey material contribution test was the label for the "legal principles concerning contributory causation". See Mizzi v. Hopkins 2003 CanLII 52145 (ONCA) starting at para. 26.
6. Resurfice declared the but-for test to be the "basic", "default" test. (Look it up yourself if you don't agree.)
7. The result of that, for all practical purposes – it took about a year – was that an "Ivory Snow pure" number of trial judges stopped formally using Athey material contribution to decide whether factual causation was established on the balance of probability. (I've used "seemingly", elsewhere, on occasion: feel free to substitute your own adjective. But DO NOT read my choice of adjectives to mean that I am suggesting that any judge has intentionally ignored the law binding on him or her, as he or she understood it, in order to make a decision he or she knew could not be validly made under the law as he or she understood it.)
8. Despite this, there has been no apparent difference in the actual result of reported cases. I've asked, again elsewhere (rhetorically of course) how it can be that Canada had so many instances between late 1996 and early 2007 where the but-for test was unworkable but seemingly none since. Again, this raises the not-too-rhetorical question of what changed in the laws of nature governing reality in common law Canada – at least reality as it exists outside of the National Capital Region and the boundaries of the various provincial and territorial legislatures – so that the but-for test was now almost Ivory Snow level workable?
9. Whatever factual causation actually means in the "real" world outside of the cloisters of law – take my word for it, the situation is worse than implied in either the English or French versions of para. 20 in Resurfice – it can be reasonably said that most judges and juries somehow got and get to the correct decision on what caused what. Or at least, make a decision that is defensibly correct under law's principles and at least as valid as any contrary decision. Don't forget that all law needs is whatever level of certainty "probably" means.
10. Nonetheless, even before Resurfice, even where the ultimate decision about whether the defendant's negligence was a cause of the injury seemed to be correct (or at least defensible) on the findings of fact, there was a real disconnection in too many reasons for judgment between the passages setting out the law and ultimate decision, particularly where the judges claimed the but-for test was "unworkable." By disconnect, I mean nothing more than that the judge's statements of the law do not actually explain why the judge made the decision that he or she did (in my view). As road maps, they don't get you from here to there.
11. If you want read why that might have been so, look up the meaning of "mantra" in your dictionary and look at my article whose short title is "Snark". It's published at (2005) 30 Advocates' Quarterly 1. It's long but there are subtitles. Or look at shorter version called "Tales of Sound and Fury: Factual Causation in Tort after Resurfice”, in Law Society of Upper Canada Special Lectures 2008, Personal Injury Law (Toronto: Irwin Law Book, 2009) 201. Or read Russell Brown, “Material Contribution’s Expanding Hegemony: Factual Causation after Hanke v. Resurfice Corp.” (2007), 45 Can. Bus. L.J. 432. (Yup, that Russell Brown.)
And consider this. The United States has had something called a "substantial factor" test – US tort law's equivalent to our Athey material contribution to injury test – for about 100 years. Many leading US tort scholars consider it a "vacuous incantation". In fact, enough did that the Restatement (3d) of Torts has abandoned it.
12. Amongst other reasons for that result was the realization that, in some cases, juries (and arguably even judges in non jury trials) were using a "substantial factor" analysis to find that negligence which was a but-for cause (whatever but-for means) was not a factual cause. That decision had to mean that because juries can only decide questions of fact, right?
13. Could that happen in Canada? You be the judge. I'll just quote the law. "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." (Resurfice, para. 23.
13. That disconnect that I mentioned between what the judges write the law is, what lawyers seem to think the law is, and how many judges analyze the cases (at least as set out in their reported reasons) is getting worse. Look at the trial decisons in the Alberta Q.B. in 2011 if you care. This court is no worse than the other trial courts.
14. Next, the Ontario and British Columbia Courts of Appeal, at least in print, have been ignoring each other's written views about the meaning of Resurfice material contribution. (Alberta's is seemingly paying some attention to British Columbia's.) That's constitutionally permissible. Whether it's a good thing is a question for academics. (I'm not one, right?). Also, in B.C., since Resurfice, some appellate judges seem to have expressed the view (not in dissenting reasons) that the Athey material contribution test was never a separate test for proof of factual causation in negligence but merely a causal "yardstick" explaining when the but-for test applies. At least, that's what they seem to have said. If somebody has a better explanation (I don't), write an article. In Alberta? Look at the majority reasons in Nattrass v. Weber, 2010 ABCA 64 at paras. 46-47. Does that passage assert that the Athey material contribution test was not a separate test for factual causation.?
15. For my penultimate next, if you want to see how great the disconnect is between what some lawyers and some judges think the law is, look at the Clements trial reasons, the factums in the Clements BCCA appeal – Carswell has them online – and the factums in the Supreme Court of Appeal. Bart and Homer Simpson might well say "D'Oh!"
16. Almost finally, returning to points 7 & 8, it is literally correct that the Supreme Court did not actually say anything about the status of the Athey material contribution test in Resurfice. Anybody want to speculate about what'll happen, especially if the SCC says, in effect, "ahem, folks, you know we didn't actually overrule Athey material contribution. We know our own law (suggestions to the contrary are mistaken) and had we intended to overrule a decision we made so recently we would have said so explicitly. And, by the way, read our lips. It is a separate test for factual causation."?
I might, but I won't do so here.
17. Last, if you're wondering what I think of the Clements appellate reasons, the result seems correct on the evidence as I understand it. The BCCA's analysis of Resurfice material contribution, though? That's "just plain wrong".
Added Feb 11 - Part 2 of this discussion is on Slaw.ca - http://www.slaw.ca/2012/02/11/here-we-go-again-part-2/
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