(for you Canadian causation junkies out there - all 10 of you)
Clements v. Clements 2010 BCCA 581was released today by the BCCA. It's not yet on CanLII so you'll have to get it from the BCCA website. That link is
On first reading, there’s some good and some bad in the analysis.
The bad includes the BCCA’s repetition of the Resurfice mantra that the material contribution dicta are not new law: "in Resurfice the Court was not purporting to change the law but, rather was reaffirming existing principles" according to the BCCA (para. 49.)
I think many judges and lawyers, and especially academic lawyers (law school professors, even two "local" types) will be astounded to now find out that, prior to Feb 7/07, a claim in negligence could succeed in Canada without proof of factual causation on the balance of probability.
(Anybody think that view would have / will help them on Prof. Brown's torts exam? Or that Prof. Klar will now amend his text? Didn't think so. Now, if the McGhee that was, and is again, had been the law in Canada after Snell, there might be some validity in the SCC's claim. But it wasn't.)
In any event, if the SCC claim about what the content of the material contribution doctrine before Resurfice was correct (it is not - as I showed in earlier posts on this board), the the BCCA majority was wrong in Mooney2004 BCCA 402, the Ont CA was wrong in Cottrelle2003 CanLII 50091 (ONCA), and again in Aristorenas2006 CanLII 33850 (ONCA – majority). And, if theCAs were, the SCC should have granted leave. The CAs were not wrong on the law as it stood. The SCC didn’t grant leave.
Clements holds that the mere fact the plaintiff is not able to adduce the evidence required to establish causation on the balance of probability does not trigger the Resurfice material contribution doctrine.
Whether the Clementsis, in substance, helpful to the practitioner on the question of when Resurfice material contribution does apply - rather than when it does not - is a matter of opinion. It's mine that, on the balance, it isn't. That is at least because the BCCA, after correctly noting that the application of Resurfice material contribution does not produce a finding of factual causation, and of course bound by the errors the SCC has made (even if the errors are obiter), proceeds to repeat them in discussing the examples of fact patterns to which the SCC said material contribution will apply: those in Cook v Lewis and Walker Estate v York Finch Hospital.
One problem with the use of Cook- I have mentioned this before - is that unless Resurfice purports to overrule the rule in Cook v Lewis, that facts are but-for pattern and the application of the rule produces a finding of factual causation on the balance of probability. (oops). If that is the still the correct interpretation of Cook, then the BCCA's view that material contribution is not a method of producing a finding of factual causation is wrong. (I believe the old phrase is "hoist on one's own petard".)
As for Walker Estate, what's the relevant difference between (a) there not being enough evidence to infer a probable conclusion as to what some person would have done, for whatever reason and (b) there not being enough evidence for the court to infer a probable conclusion as to what would have happened to the bike but for Mr. Clements manner driving. Was the BCCA suggesting there's something inherently different about what one might call "decision causation" - the Walker situation, from causation merely involving issues such as vehicle speeds, tyre reactions, road conditions etc? There is academic writing on the question of whether there is anything unique about decision causation. One such piece is mentioned in the article by Prof. Knutsen the court refers to extensively: Vaughan Black: "Decision Causation: Pandora's Tool Box" in Emerging Issues In Tort Law, J. Neyers et al. eds. (Oxford: Hart Publishing, 2007) 309-30.
I’m sure that Clements will get mentioned by somebody, in some context, at the June 2011 CLEBC conference. One of the scheduled speakers is Professor Erik Knutsen (Queens), the author of the article extensively quoted and relied in Clements. Other speakers are U of A Law's own Professors Klar and Brown.
