Bobby Ewing Revisited? Clements v. Clements (SCC Case No 34100)

The Supreme Court of Canada announced this week that it will release its decision in the appeal from Clements v. Clements, 2010 BCCA 581 on June 29. Clements is a personal injury action. The plaintiff was injured in a single-vehicle motor cycle accident. The issue in the appeal is causation. The plaintiff won at trial – on Resurfice material contribution, not the but for test: the trial judge having held the plaintiff had failed to prove factual causation on the balance of probability – but lost on appeal. The British Columbia Court of Appeal held that the but-for test governed and the trial judge was correct in holding the plaintiff had not satisfied the onus. Then, in an obiter, the BCCA discussed the meaning of Resurfice material contribution.

I wrote about Clements and Resurfice material contribution earlier this year on Slaw: here.

The appeal was argued on February 17, 2012. The appellant/plaintiff argued that the facts satisfied Resurfice material contribution, that test governed, and the trial decision was correct. The respondent/defendant argued the British Columbia Court of Appeal was correct in holding that the but-for test governed and in dismissing the action.

The fact that the judgment is scheduled to be released within about 4 1/2 months of the hearing could mean the SCC has decided to say very little if anything about Resurfice material contribution.

Prof. Russ Brown (of the University of Alberta Faculty of Law) and I have written a case comment about Clements and what should happen in the Supreme Court, based on our view of the evidence as recounted in the trial and appeal reasons, and as set out in the factums of the parties. The parties’ Supreme Court appeal factums are available on the SCC web site. Coincidentally, our case comment – “The Bounds of ‘Common Sense Inferences of Causation: Clements v. Clements and The Art of Motorcycle Factum Maintenance” (2012) Advocates’ Quarterly 129, has just been published [punished: “Punished” works, too, for other reasons, but I meant to write “published” – hat tip to Robert Crawford for spotting this and tweaking me]. We argue that, on the evidence, the BCCA was right in dismissing the action. Those of you, in Canada, who subscribe to the AQ may get the AQ part containing the comment before Friday, if Canada Post delivers timely.

If you’re interested in guessing along with us as to what the SCC might do you can watch the webcast of the appeal argument.

What’s the relevance of my post title? Well …

1. It caught your attention, right?

2. See my earlier posting about Clements.

3. Remember the “Dallas” TV show where the series reset itself by bring “Bobby Ewing”? back and “wiping out” a year(?) of events . The series year(?) that took place after his death turned out to be a dream. (Maybe a bad dream.) If, by chance, the seemingly fast release of the Clements decision is because the Court has decided to explain that Resurfice was never intended to “deep-six” the Athey v. Leonati, [1996] 3 SCR 458, 1996 CanLII 183 version of material contribution and send the case back for a new trial, or even decide the case on that basis – the appeal wasn’t argued on that basis, I doubt that’ll happen, but who knows – then we’ll have a “Bobby Ewing” situation. In practice, Athey material contribution has been formally dead for the past 5 years.

4. Those of you who sometimes act for plaintiffs in Canada, and still remember the era before February 2007, will remember that Athey material contribution (at least as it was understood by the plaintiffs’ bar, common law trial and appellate judges and many academic lawyers) was supposed to be a relaxed, easier for the plaintiff to satisfy, test for proof of factual causation in tort actions.

5. If you’re not inclined to watch the webcast as a basis for guessing, try haruspicy. That might not be more more accurate, but it’ll give you something to use for dinner.


  1. those of you who might, sometimes, wonder how analyses of (perhaps) analogous (enough) concepts match across the breadth of a system of law might look a the discussion of “Legal causation – Intervening Act” in R v. Maybin 2012 SCC 24 commencing at para 18.

    Some of you might hear an echo of Athey para. 17 in Maybin‘s para. 21.

    You’ll have to assume SCC in Clements finds some some causal connection between the driver’s negligence and the accident. That means (based on the evidence as I understand it)there’d have to be a finding that the bike WOULD NOT HAVE capsized had the driver been driving at the highest speed which was NOT negligent for the conditions.

    If it still would have, then there’s no causal connection at all between the negligent aspect of the driver’s conduct and the bike capsizing.

    For those of you who might wonder what all of this could have to do with Resurfice, proof of whatever is required for causation in a particular case, and the meaning of Resurfice material contribution, consider para. 22 of Maybin.

    [22] The fact that the bouncer’s act may have been a novus actus interveniens, or an intervening act, is part of the analysis of whether legal causation has been established and whether the appellants should be held legally accountable for the death.

    [emphasis in original]

    If you look at the second example that Resurfice offered for when the Resurfice version of material contribution might apply, I think you’ll see that [22] of Maybin is readily modified to fit the facts of the example. Just substitute “blood donor’s” for “bouncer’s”. But, then, if this means we’re talking about legal causation and not factual causation, then Resurfice material contribution can’t be understood to be about factual causation, right? And if it’s not about factual causation, then it couldn’t have been intended as a replacement for Athey material contribution which (whatever it meant) was, seemingly, about factual causation, right?

    Follow the bouncing ball, etc. We now return your TV sets to you.

  2. m. diane kindree

    David, I absolutely agree with your comments since the law, not confusion, should be the dominating principle governing this case. I must confess that I dislike reading about this kind of legal ping-pong game more than I dislike reading about the carrying on (tip of my hat to Simmon: it is all in the name) of the equivalent of an ambulance-chasing internet lawyer.