SCC Clarifies but for Impossibility in Clements v. Clements

The Supreme Court of Canada released its decision in Clements v. Clements today. David Chiefetz shared some thoughts about the case here earlier this week.

The majority, led by McLachlin C.J., expounded on the material contribution test, and indicated that it is better characterized as a “material contribution to risk” and not to injury. However, this approach should be rarely used to ensure that the fundamental principles of tort law for proof of causation are not undermined.

The court also clarified the principle found in Resurfice Corp. v. Hanke that the material contribution test is appropriate where causation under the but for test is impossible to prove,

[36] Some have suggested that “but for” proof must be logically or conceptually impossible before material contribution to risk is available… Clearly the impossibility in those examples was related to difficulties with factual proof, not to logical problems inherent in the peculiarities of the case.

[37] However, the option of finding that a material contribution to risk approach is available whenever proof of “but for” causation cannot be made on the facts is equally problematic. First, how does one distinguish between a case of true impossibility of factual proof and a situation where the plaintiff simply fails to meet her burden of establishing “but for” causation on the evidence? Unless one can make a clear distinction, one effectively undermines the requirement that the plaintiff bears the burden of showing that, “but for” the defendant’s negligence, she would not have been injured. In any difficult case, the plaintiff would be able to claim impossibility of proof of causation. Such a result would fundamentally change the law of negligence and sever it from its anchor in corrective justice that makes the defendant liable for the consequences, but only the consequences, of his negligent act.

The impossibility referred to in case law does not describe scientific impossibility, but rather the impossibility to determine on a balance of probabilities which specific tortfeasor was at fault. The material contribution test achieves fairness in compensation because the plaintiff has already established a but for causation on a global scale, but is unable to determine which specific defendant was responsible for the injury.

The majority discussed the case of Sienkiewicz v. Greif (UK) Ltd., [2011] UKSC 10, [2011] 2 All E.R. 857, where the material contribution test was applied against a single tortfeasor, but noted that Canadian courts had difficulty applying this principle and have not adopted this approach,

[43] It is important to reaffirm that in the usual case of multiple agents or actors, the traditional “but for” test still applies. The question, as discussed earlier, is whether the plaintiff has shown that one or more of the defendants’ negligence was a necessary cause of the injury. Degrees of fault are reflected in calculations made under contributory negligence legislation. By contrast, the material contribution to risk approach applies where “but for” causation cannot be proven against any of multiple defendants, all negligent in a manner that might have in fact caused the plaintiff’s injury, because each can use a “point the finger” strategy to preclude a finding of causation on a balance of probabilities.

[44] This is not to say that new situations will not raise new considerations. I leave for another day, for example, the scenario that might arise in mass toxic tort litigation with multiple plaintiffs, where it is established statistically that the defendant’s acts induced an injury on some members of the group, but it is impossible to know which ones.

McLachlin C.J. provided a helpful summary of the present state of law at para. 46,

(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.

(2) Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where

(a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and
(b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.

The dissent, written by LeBel J., agreed in substance with the majority with the law, but departed in the application in this case,

[59] The trial judge’s comments must be read in the context of his decision as a whole. He had determined that, in view of the impossibility of proving how, or whether, each factor had contributed to the accident, “but for” causation should be dispensed with and a “material contribution” test applied. The quoted comments were made in the context of his application of the latter test. They constituted his conclusion that the material contribution test had been satisfied.

[60] For the reasons given by the Chief Justice, the application of the material contribution test by the trial judge was inappropriate. Further, as the Chief Justice states, at para. 14, the “but for” and material contribution tests are “two different beasts”. The material contribution test does not require a factual inquiry into what likely happened, but imposes liability as a matter of policy. The trial judge’s finding that the material contribution test was satisfied cannot be reinterpreted as a finding that “but for” causation was established without seriously undermining the important distinction between the two tests and the clarity of the analysis pertaining to causation.

 

Retweet information »

Comments

  1. So all of the cases decided between Athey in late 1996 and Resurfice in early 2007, where factual causation was decided on an Athey material contribution basis, were decided as they were as the result of the provincial trial and appellate court judges’ misunderstanding of Athey?

    All these cases were wrongly decided in terms of the legal principles involved even if (by chance) they were correctly decided because the judges findings of fact (or the jury’s) amounted to but-for findings when properly considered?

    Of course, there’s no way of knowing that for jury decisions.

    And statutory compensation schemes – think workers’ comp or motor vehicle accident accident benefits – where the Athey material contribution to injury test(understood as a method of establishing factual causation on the balance of probability) was adopted as the meaning of the causation terminology in the statute were wrong in justifying their decisions based on Athey, even if decision on the meaning of the statute was correct?

    One could take issue with the revisionism (?) in Clements‘ reinterpretation of what Walker Estate said and did. Clements is correct at [28] in the statement that Walker Estate did not apply a “material contribution to risk test” and that the SCC has never applied such a test. That’s because Walker Estate applied a sufficient-condition version of a material contribution to injury test. It’s also a bit revisionistic to claim that Walker Estate was “resolved” using the but-for test. That was the secondary basis. The primary basis, in Walker Estate was the sufficient-condition version of a material contribution to injury test because, according to what the Court wrote, in claims arising out of the negligent screening of blood donors, it was NOT necessary for the plaintiff’s to satisfy the requirements of the but-for test. (Vaughan Black has pointed out, in a case comment on Walker Estate, that it’s not clear how the Court was using the terms “necessary” and “sufficient.)

    The House of Lords, in Fairchild, in order to (re)create the UK version of a material contribution to risk test, candidly admitted that Wilsher‘s view of McGhee was wrong and they were resiling from it, albeit not from the decision in Wilsher itself. In In Clements, the SCC seems to have almost candidly admitted that the lower courts got the law wrong, at least. That’s very nice of the Court to do it,now, given that it denied leave to appeal in any number of cases where Athey material contribution had been used. It’s also a safe guess that leave to appeal wasn’t sought in many cases because the losing side’s lawyers correctly concluded it wouldn’t be granted.

    In Clements, the SCC claimed the principles of Resurfice material contribution are implicit in Snell. That’s correct in the sense that Snell said that in an appropriate case the court could create new rules for causation. (At [22] The SCC quoted and underlined the passage in Snell. But there are cases after Snell in which the SCC rejected the proposition that causation could be established even if the plaintiff could not show factual causation on the balance of probability: Arndt, Stewart v. Pettie, St. Jean v. Mercier. If I wanted to be unfair, I could also point to the dissent in Hollis v. Dow Corning.

  2. Now I’ll respond to your title (g)

    Whether Clements “clarifies but for impossibility” at all is open to debate. This seems to be the paragraph in which the Court attempted to explain what it meant in Resurfice:

    [39] What then are the cases referring to when they say that it must be “impossible” to prove “but for” causation as a precondition to a material contribution to risk approach? The answer emerges from the facts of the cases that have adopted such an approach. Typically, there are a number of tortfeasors. All are at fault, and one or more has in fact caused the plaintiff’s injury. The plaintiff would not have been injured “but for” their negligence, viewed globally. However, because each can point the finger at the other, it is impossible for the plaintiff to show on a balance of probabilities that any one of them in fact caused her injury. This is the impossibility of which Cook and the multiple employer mesothelioma cases speak.

    But, that description means either

    1. the conduct of each of the wrongdoers is an alternative that, if it was a cause, precludes the other conduct(s) from being a cause – that was Cook v. Lewis; or

    2. it is either

    (a) an alternative situation as in (1) or

    (b) a situation where all of the candidate tortious causes were causes – separately sufficient causes, not cumulatively necessary causes.

    BUT 2(b) IS factual causation.

    We also have 2(b) every time we have separate, successive in time, incidents and we say the later is also a cause of at least some of the injury loss that the earlier incident is a cause of.

    We avoid the doctrinal causation problem, here, where the successive incidents are tortious (even if there is one that is not) by calling the injury indivisible and deeming it to be “caused” by all of the tortious incidents.

    But the SCC has now suggested that some cases which ARE factual causation are going to be treated as material contribution cases where there isn’t factual causation?

    The Court didn’t mean that, of course. But that’s what the Clements reasons do say.

  3. Robbie Cano MVP

    David, I think your 2(b) problem is addressed at para 43:

    ” It is important to reaffirm that in the usual case of multiple agents or actors, the traditional “but for” test still applies. The question, as discussed earlier, is whether the plaintiff has shown that one or more of the defendants’ negligence was a necessary cause of the injury.”

    If there are multiple but for causes, it is still adressed on a factual causation basis. The material contribution approach is never available if the plaintiff can prove her injury was caused by one defendant in particular.

    Also, I think your understanding of #1 is incomplete. This approach does not just cover multiple negligent acts where only one was the but for cause (Cook). It also covers instances where there are multiple tortious causes, and more than one could have been a necessary cause of the injury (for example, if you had a disease that could be caused by cumulative exposure to a contaminent, and five defendants who each exposed the plaintif to the contaminent. It is possible that there is more than one but for cause (the cumulative exposure from two or more employers was necessary for the injury; without either exposure the accident would not have happened), but the plaintiff is defeated against anyone due to a point the finger defence, so, if she can show but-for negligent causation against the group, she can recover). This is set out, in my opinion clearly, when the Chief sets out the fisrt precondition to using the but for test: “where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; ”

    I think you misread the reasons when you suggest that they indicate factual causation will be dealt with as material contribution. If a plaintiff can ever show any tortfeasor was a necessary but for cause, material contribution is not available: the plaintiff must be ” unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury”

  4. m. diane kindree

    Thanks for the wonderful reporting and commentary….a most intriguing SCC contribution, albeit still confusing, application of the risk-based/factual causation problem.

    Omar and/or David: Would either of you care to comment on the impact this SCC ruling may have on the future litigation of medical malpractice cases arising from a systemic quality control problem occuring in a hospital. For instance, a healthy patient, undergoing a minor surgical procedure, is believed to be cross contaminate with c. difficile, and regrettably dies.

    If the “but-for findings” could not prove, on the balance of probabilities, that the defendant’s (hospital policy and procedure) ) action (or inaction) contributed to the patient’s death could, would, or should the court and/or jury automatically apply the “material contribution to risk test” in this case?

    Factual evidence: multiple patients have become infected with c. difficile, prior to and since this patient’s death, despite the hospitals strict policy and procedures in handwashing, avoiding cross contamination and the reporting and containment of outbreaks.
    It was noted that the surgical consent form the patient signed did not disclose (infection with antibiotic resistent c. difficile) as a potential risk factor. The family stated they were not even aware that the hospital had a problem with this bacterium. Several reports in the media have suggested this is one of the most common infections occuring in hospitals and nursing homes and is difficult to erradicate.

    The surgery, in this hospital, was a direct material contribution to this patient’s risk of exposure to and infection with this antibiotic resistent bacterium. While delivery of medical care met accredited standards the systemic quality control problem remains a contributing risk factor in this setting.

  5. Robbie Cano MVP

    Diane, under this approach, if a plaintiff cannot show on a balance of probabilities that her loss was caused by a tort (on a but-for basis) she loses. Full stop.

    It is only if she can prove her loss was caused by a tort, but then cannot prove which of several possible tortfeasors caused her loss, that she can look to material contribution.

    So if a plaintiff can show that someone negligently exposed her to this disease (i.e., it is more likely than not her exposure was due to a negligent cause), then she can recover from everyone sufficiently negligent to have caused her injury who might in fact have caused her injury.

  6. Diane,
    To expand on Robbie’s point, I don’t know of any Canadian case applying the material contribution test to a c. difficile nosocomial infection.

    Dorion c. Centre de santé et de services sociaux
    Richelieu-Yamaska (Hôpital Honoré-Mercier)
    , [2012] J.Q. no 1637 dealt with a class-action and an out of court settlement. On the certification motion, [2009] J.Q. no 6876, the court discusses the alleged negligence without raising material contribution (contribution appréciable) as necessary.

    I cannot comment directly on a specific fact scenario that you present. But I will not that negligence under the Clements analysis above can still be found if an adverse outcome occurs due to the care of the hospital.

  7. Robbie,

    Para. 43 is about multiple tortious causes which are cumulatively necessary, as was the case in Athey, not separately sufficient.l That’s why the para. states “is whether the plaintiff has shown that one or more of the defendants’ negligence was a necessary cause of the injury.”

    Para. 43 is NOT about duplicative causation.

    In cases of duplicative causation, none of the multiple causes are necessary in the but-for sense because each one is separately sufficient (together with the “background” conditions.”

    In cases of duplicative causation, one can, obviously, say that at least one of the tortious causes was necessary for the injury – because everything has to have a cause – but that isn’t how “necessary” is used in but-for. What one means is that the particular tortious event is necessary for the sufficiency of the set of factors that are a cause. But there is another such set which does not include that particular event.

    Nonetheless, each of the duplicative causes are factual causes.

    Paras. 39 and 46(2) as written literally cover duplicative causation too. If the Court meant that, the Court meant that. The Court also claimed that the primary basis upon which Walker Estate was decided was the but-for test.

    The Court elided this problem by the statement that “The plaintiff effectively has established that the “but for” test, viewed globally, has been met.” [38] That’s a startlingly wrong way to use the but-for test – that’s why the case doesn’t cite any authority – but the SCC is infallible because its final. But the Chief Justice almost certainly knows the last time that sort of compartmentalized approach to duplicative causation, so as to be able to say that each event is a but-for cause was tried. the Chief Justice’s dissenting reasons in Sunrise.

    But, again, law is a secular version of religion. The Prime Being(s) provide the Commandments. If they want them understood and applied for what they mean, they’ll just have to be clearer. History has proved that, no?

  8. OK, but in your duplicative causation cases, I don’t quite understand how you are using “factual” causation. It seems to me that you are talking about a factual cause of the “blow”, not the “injury”.

    I take it that you are referring to cases where, say, two people simultaneously negligently shoot the same person. Cook v. Lewis with worse luck. Say the person dies. Then each can argue I am not responsible for his death; he would have died anyways.

    In such a case, sure we can prove factual causation between your bullet and his head. But what is at issue in tort law of course is not the blow, but the consequence of that blow. You need to prove not just that the person shot you, but that the person caused you injury.

    I do not think we can prove “factual” causation of the death against either defendant in my duplicative causation example. But I think that both shooters would be held liable under the material contribution to risk approach set out in Clements.

    If I have the duplicative causation example wrong, definitely let me know! But could you explain how exactly a plaintiff could prove that a defendant was a factual but for cause of her particular injury, and the Court would hold the defendant liable for materially increasing the risk based on clements language?

    Also, could you elaborate on why asking if but for is viewed globally is “startingly wrong”? I accept that it is novel, but I do not see how it is problematic to ask if the plaitniff has proven her loss was caused by some tort.

    Thanks so much! I’ve really enjoyed reading your thoughts on this mellon-scratching subject.

  9. You are confusing responsibility with factual causation.

    I was not referring to cases such as Cook v. Lewis. Cook v Lewis was not duplicative causation. It was one or the other. That is alternative (or pre-emptive) causation. The only problem in Cook was that there wasn’t enough evidence to identify the one cause

    Duplicative factual causation has more than one sufficient factual cause.

    Standard duplicative causation examples A and B, acting independently of each other an not in any sort of joint effort, negligent start large fires. Each fire is large enough to destroy your house if it reaches your house. The two fires merge before reaching your house. Each fire is a sufficient cause of the destruction of your house.

    Two people, acting separately, stick a lethal dose of of the same poison into our MacAllan 25. You drink the Scotch. Each does is separately sufficient.

    If both does were given to you negligently, if both fires were started negligently, neither wrongdoer can use the other wrongdoer’s conduct as a defence.

    But what, if in each case, one of the multiple causes is not tortious? They’re still both factual causes. What, then, is the responsibility rule?

    In Canada, we say no liability even though there is – because the wrong did not cause any change in P’s original position. That point is in Athey, too.

    The “global” view of but-for is startling novel, and wrong, because it is contrary to the definition of a but for analysis. You don’t have necessity if the injury still occurs. The Court knows that. They can change the meaning if they want, but they’re changing centuries of meaning.

    You might have sufficiency, but that’s a different beast.

    In Cook v Lewis, under the rule in Cook v Lewis – the case was sent back for a new trial with the defendant having the onus of disproving proof on the balance of probability. If neither had, they’d both be held liable. But the rule in C v L doesn’t mean that the conduct of both hunters was a factual cause. Even Canadian law isn’t that silly. It says both will be held responsible. (A different beast.)

    I don’t understand this question as written. It conflates two scenarios which, by definition, can’t both occur. Did you mistype?

    But could you explain how exactly a plaintiff could prove that a defendant was a factual but for cause of her particular injury, and the Court would hold the defendant liable for materially increasing the risk based on clements language

  10. I am sorry, looking back my wording was bad in my example – I see that it is not clear that I was endeavouring to change cook v. lewis so that both shooters hit the plaintiff, and he died (so as to be in effect the same as your posion example). I apologize – that was confusing – it was my intention to posit a modified Cook v. Lewis.

    I think I understand all your points, except I am left with one question: if there is a difference between responsibiltiy and factual causation, what is the relevance of factual causation?

    Earlier I thought when you said “factual causation” you meant establishing on a blance of probabilities that but for the neglignece the injury would not have been suffered. Factual causation as short hand for proving but-for causation of the damage.

    But now my understanding is that when you say “factual causation” you mean something else – a direct causal link between the plaintiff and the negligence, not a but-for link between the negligence and the damage suffered (which would establish responsibility).

    So if factual causation is not about proving that, but for the negligence, the injury would not be suffered, what is the practical use of the concept in negligence law?

    Take my modified Cook v. Lewis where both hunters actually hit poor Mr. Lewis with a fatal shot. These would both be “factual causes” of his injury. Both would however not be necessary but for causes of his damage, because he would have died anyways from the other shot. The plaintiff fails on but for against both, despite their being factual causes. They can however both be held liable on Clements material contribution: the estate can show the loss was caused by a tort, both were sufficiently negligent, and can only defeat causation through a point the finger approach.

    Why does the idea that both hunters were “factual causes” lead to difficulty here? I am still trying to get my head around your earlier objection when you said “But the SCC has now suggested that some cases which ARE factual causation are going to be treated as material contribution cases where there isn’t factual causation?”

    Finally, on the global but for idea, are they really changing the “but-for” test? My view is, if anything, they are changing the material contribution to risk test to integrate the concept of but-for so as to ensure a plaitniff does not recover if her loss likely had a non-negligent cause.

    But for is still being used for necessity. The negligence of one or more of the defendants must be proven to have been a necessary cause of the loss. However, as you note, each defendant need not be proven to have been himself a necessary cause of the loss to be held liable; if the pre-conditions are met, sufficientcy will do. That sufficiency determination is not done using but-for.

    Thanks so much for your replies, this has been a fascinating exchange for me.

  11. I was endeavouring to change cook v. lewis so that both shooters hit the plaintiff, and he died (so as to be in effect the same as your posion example). I apologize – that was confusing – it was my intention to posit a modified Cook v. Lewis.

    If both shots had hit P, and both hunters were negligent, then it’s a question of what the evidence shows on the balance of probability.

    One shot injured P; or the other shot did; or both are a cause of the same (for law) injury and consequences; or the evidence isn’t sufficient to decide the question. Negligence law has answers for each situation. Deciding what the facts mean may be hard. The law isn’t difficult.

    I think I understand all your points, except I am left with one question: if there is a difference between responsibiltiy and factual causation, what is the relevance of factual causation

    Because, in tort law, there’s no legal responsibility without causation, however it is that one defines causation. Factual causation in some sense is a part of the concept of legal causation.

    But now my understanding is that when you say “factual causation” you mean something else – a direct causal link between the plaintiff and the negligence, not a but-for link between the negligence and the damage suffered (which would establish responsibility).

    So if factual causation is not about proving that, but for the negligence, the injury would not be suffered, what is the practical use of the concept in negligence law?

    factual causation is a description of a connection between cause and effect, in law between wrong and injury. At the moment, the but-for test is (supposedly) the only method of testing for that connection. Between late 1996 and early 2007 a raft of people – certainly most Canadian judges and lawyers – thought there was an alternative method called Athey material contribution. Many plaintiffs received scads of money, and many defendants paid scads of money, based on that concept.

    The but-for test (necessity) is simply NOT the meaning of factual causation.

    Take my modified Cook v. Lewis where both hunters actually hit poor Mr. Lewis with a fatal shot. These would both be “factual causes” of his injury. Both would however not be necessary but for causes of his damage, because he would have died anyways from the other shot. The plaintiff fails on but for against both, despite their being factual causes. They can however both be held liable on Clements material contribution: the estate can show the loss was caused by a tort, both were sufficiently negligent, and can only defeat causation through a point the finger approach

    No. If both shots were necessary for the injury, both are liable. If both hunters were negligent, both are still liable even if either shot was sufficient to kill, so long as the evidence doesn’t permit identifying which shot it was that actually killed, on the balance.

    Why does the idea that both hunters were “factual causes” lead to difficulty here? I am still trying to get my head around your earlier objection when you said “But the SCC has now suggested that some cases which ARE factual causation are going to be treated as material contribution cases where there isn’t factual causation?”

    Because Resurfice material contribution if it is applied, does NOT produce a conclusion that any of the possible causes were, in fact, factual causes (think actual causes).

    Finally, on the global but for idea, are they really changing the “but-for” test?

    Yes

    My view is, if anything, they are changing the material contribution to risk test to integrate the concept of but-for so as to ensure a plaitniff does not recover if her loss likely had a non-negligent cause.

    No. The concept of necessity is relevant to the new material contribution doctrine only at the preliminary level of determining whether the fault could cause the injury in issue. There will be a minimum set of conditions necessary to cause any injury.

    Material contribution isn’t about likely causes. It’s about possible causes in instances where the possibility doesn’t risk to the level of likelihood.

    In Barker v Corus, one of the possible causes was non-tortious. It’s probably no accident that the SCC didn’t mention that since that tidbit explains why the UKSC felt bound to decide Sienkiewicz as it did.

    If we take Resurfice material contribution as it was explained in Resurfice at face value, it did not require two or more tortfeasors.

    But for is still being used for necessity. The negligence of one or more of the defendants must be proven to have been a necessary cause of the loss. However, as you note, each defendant need not be proven to have been himself a necessary cause of the loss to be held liable; if the pre-conditions are met, sufficientcy will do. That sufficiency determination is not done using but-for.

    I do not understand this passage. As written, it conflates necessity and sufficiency and contains statements that are incorrect. The but-for test, as defined, is based on necessity. Defendants generally don’t have to prove anything. Except in cases where Cook v. Lewis applies (if it still exists) the plaintiff has to prove causation on the balance of probability. Sufficiency has nothing to do with the but-for test, except in the sense that if one proves necessity in the particular case, one has proven sufficiency. But the opposite is not true.

    If you are a law student or otherwise involved in law, you should reread the chapter in Klar, Tort Law, on causation. (If you’re not but are for some reason in interested law’s take on the subject, it’s still a good place to start. But, unless you’re obliged to, I’d recommend you not waste time attempting to understand the current Cdn common law – that’s all we’re talking about, here – position. You’ll be wasting your time.)

    Thanks so much for your replies …

    You’re welcome.

  12. unless you’re obliged to, I’d recommend you not waste time attempting to understand the current Cdn common law – that’s all we’re talking about, here – position.

    Leave it to the big boys, eh ;)

    Look, I don’t mean to drag this on, and I certainly appreciate and respect your expertise in the subject, but it seems to me that you are just arguing against this current change because it is not what you are used to, not because you identify any situation where the SCC’s approach in Clements leads to an illogical or unfair result.

    I also still think that you were wrong when you said “But the SCC has now suggested that some cases which ARE factual causation are going to be treated as material contribution cases where there isn’t factual causation?” If we accept that Athey material contribution to injury is dead, and was probably a suspect concept to begin with, then “factual causation” = “but for necessary cause of injury”. Then there is no situation where the SCC mandates that a “but for necessary cause of the injury” will be dealt with as material contribution to risk, because, as you said this doesn’t make sense.

    I read the SCC to choose not to follow Barker because it recognized that a plaintiff should not recover if she cannot show on a balance her loss was likely caused by a tort. That is the value added by the global-but for test. It asks whether a tort was a necessary cause of the plaintiff’s injury; if it was not, the plaintiff cannot recover. There is no conflation of sufficiency and necessity at this point; it looks ONLY at the plaintiff’s loss and asks if it was caused by a tort, without evaluating causation against any individual defendant in particular. If the plaintiff in Barker could not show it was more likely than not that her loss was caused by a tort, she should not recover in tort. Once you can prove but-for causation against a group of defendants globally, then it become just for the plaintiff to recover against each one who’s negligence was sufficent to possibly have caused her loss.

    The Athey Material Contribution to Injury approach proved to be impossible to work with and logically suspect. But most of those cases that relied on that would now be resolved on a pragmatic approach to but-for. The Court moved away from the confusing langauge of material contribution to injury and towards the more intuitive common sense inference of causation.

    Again, thanks for your input and expertise.

  13. David Cheifetz

    Robbie,

    This has become a waste of my time, so this is my last response.

    You wrote:

    Leave it to the big boys, eh ;)

    No.

    You wrote:

    I think I understand all your points, except I am left with one question: if there is a difference between responsibility and factual causation, what is the relevance of factual causation?

    I chose to make an issue of that question in my last response. I suspect it raised many eyebrows.

    If you’d written that on a tort exam in law school, you’d fail torts, if I were marking the exam. (I’d probably allow you to rewrite if it turned out, afterwords, that you hadn’t meant to write that and showed you knew the subject.) I hope that would be the result everywhere across this country.

    I can imagine what would have happened had you asked that question to the equivalent of the professor John Houseman played in Paper Chase. He’d have given you at least a dollar to call home, just in cause the pay-phone didn’t work or the call was long distance.

    I shudder to think what would happen if you’d said it to a judge, especially in front of jury.

    it seems to me that you are just arguing against this current change because it is not what you are used to, not because you identify any situation where the SCC’s approach in Clements leads to an illogical or unfair result.

    You’re wrong, but if that what it seems to you, then that’s what it seems to you. I’ll simply add that had you read anything I’ve published over the years on the subject, you’d not have said that. If you have, you’ve misunderstood.

    The HL realized in Sienkiewicz that the application of the UK version produced a result which was illogical and at least arguably unfair.he action would necessarily have failed if the evidence showed that both the tortious asbestos exposure and the non tortious asbestos exposure were independently sufficient causes. So the action succeed only because the evidence couldn’t prove or disprove either.

    The use of Resurfice mc to apply to case of duplicative causation – deeming these instances to not be factual causation – is illogical.

    Beyond that, as I have no idea what you think is illogical or unfair, I’ve no basis upon which to respond to you. I am not asking you to expand.

    You’ve not understood what the SCC’s approach in Clements means, but it’s not my job, my duty, nor my anything else to explain it to you. (Unless, of course, you’re one of the associates or soon to be articling students at my firm, masquerading under an alias, in which case I’m going to be VERY unhappy.

    If you disagree, then you disagree.

    I also still think that you were wrong when you said “But the SCC has now suggested that some cases which ARE factual causation are going to be treated as material contribution cases where there isn’t factual causation?” If we accept that Athey material contribution to injury is dead, and was probably a suspect concept to begin with, then “factual causation” = “but for necessary cause of injury”. Then there is no situation where the SCC mandates that a “but for necessary cause of the injury” will be dealt with as material contribution to risk, because, as you said this doesn’t make sense.

    This paragraph states nonsense. Again, duplicative causation IS factual causation. If you won’t accept that, you won’t accept that.

    I read the SCC to choose not to follow Barker because it recognized that a plaintiff should not recover if she cannot show on a balance her loss was likely caused by a tort. That is the value added by the global-but for test. It asks whether a tort was a necessary cause of the plaintiff’s injury; if it was not, the plaintiff cannot recover. There is no conflation of sufficiency and necessity at this point; it looks ONLY at the plaintiff’s loss and asks if it was caused by a tort, without evaluating causation against any individual defendant in particular. If the plaintiff in Barker could not show it was more likely than not that her loss was caused by a tort, she should not recover in tort. Once you can prove but-for causation against a group of defendants globally, then it become just for the plaintiff to recover against each one who’s negligence was sufficient to possibly have caused her loss.

    We have no idea why the SCC chose to say what it did about Barker v. Corus. What we do know is that it mis-described it. what we also know is that the logic of what the SCC said in Fairchild requires that Resurfice mc apply to the one tortfeasor situation, not the least because the blood donor in Walker Estate wasn’t necessarily negligent. Did you miss that?

    Proving “causation against a group of defendants globally” is not valid under the but-for test as it was explained before Clements. If you’re not prepared to accept that, you’re not prepared to accept that. But everybody in the SCC has to know that, or they’d not have passed their tort exams in law school.

    The Athey Material Contribution to Injury approach proved to be impossible to work with and logically suspect.

    Logically suspect? Yes.

    Impossible to work with? You’ll get an argument about that from every judge who applied it between late 1996 and February 2007. (You might want to read the ONCA’s reasons in a 2003 decision called Mizzi v. Hopkins. You might want to read the reasons of the ONCA in 2007 (post Resurfice) where that panel claimed that Resurfice hadn’t altered the law of causation, only clarified it.

    But most of those cases that relied on that would now be resolved on a pragmatic approach to but-for.

    In some of the cases, as, for example, Moore v. Wienecke (ONCA) decided pre Resurfice on Athey mc but affirmed post Resurfice on the basis that the trial judge’s decision amounted to but-for findings of fact.

    But not Fullowka where both the NWTCA the trial judge’s analysis was a material contribution analysis which did not amount to but-for findings of fact. That’s probably what the SCC meant, but I wouldn’t hedge against your RIM investment on that guess.

    And, if you’ve followed the cases for the past 5 years you OUGHT to have wondered whether all that happened is the judge changed his or her terminology, believing it made no difference to the end result.

    The Court moved away from the confusing language of material contribution to injury and toward the more intuitive common sense inference of causation

    .

    If you believe your statement of “intuitive common sense inference of causation” makes sense, then you believe in magic. You might look at what the HL in Fairchild, and the ONCA in Aristorenas, said about “common sense” and conjuring. Spend a few moments on the web, too, and you’ll find some very good pieces by, among others, Jane Stapleton and Lord Hoffman and the nonsense of “common sense”.

    If all you mean by common sense is a valid process of inference drawing, then I agree with you. There’s lots of good material on what that process means. (See the trilogy of articles by Prof. Russell Brown of the U of Alberta faculty of law on the subject.) But don’t hide a label which, on its face, means nothing more than “I can’t explain why, but I know it when I see it.”

    If you are a member of the legal profession in Canada, you’re supposed to believe in the rule of law. If you’re a judge, you’re supposed to be able to explain why you made a decision. (Jurors don’t have to.) I believe that “I relied on my common sense” is no explanation at all. If you believe otherwise, you believe otherwise.

    You can respond again, but I won’t.

    DC

  14. David Cheifetz

    (sigh)

    A good friend said that he worries about typos and the like in this form of communication only if he’s writing to the Queen. On the whole, he’s right, but there are three I’ll fix.

    I chose to NOT make an issue of that question in my last response. I suspect it raised many eyebrows.

    What we also know is that the logic of what the SCC said in Resurfice requires that Resurfice mc …

    But don’t hide behind a label …

  15. m. diane kindree

    Lethal weapons, smokin’ guns: accidental or deliberate (tort vs. crime)and who-done-it when the two tortfeasors (shooters)can’t be identified? Would this complex environment warrant the application of the material contribution risk test if the unidentified shooters (among multiple gang members)who had gathered, and consumed drugs and alcohol, to celebrate a recent turf war. The victim was injuried when two (or more) tortfeasors’ separate actions, were sufficient to cause injury. After the shooting, all weapons were discarded (unknown location) but not before all members had discharged their weapons allegedly to salute their turf war victory. Can all those participating in this complex environment, now be considered liable for the necessary cumulative causes, resulting in injury, without ever identifying the actual shooters? Incidently, the victim was not associated with any gangs and was merely walking home from work when he was struck down and paralyzed. Justice requires he and his family be compensated for his losses and future medical care.

    My aim in commenting on the above exchange(Shooters), is an attempt to relate my own queries and try to formulate a better understand of the possible application of this SCC ruling to my hypothetical medical case. Thanks Omar for your helpful response.

    How would this tort law ruling deal with compensation surrounding medical injury sustained in complex environments such as hospital, nursing homes, etc. An environment where “all the candidates tortious causes were probable causes”. In this hypothetical case of c. diff. related death, the organism has been found on stethoscopes used by doctors, nurses and physiotherapists who attended to the patient. The health care providers were rarely witnessed (by family and friends) to clean their stethoscopes between patients. Incidently, evidence of c. diff. was also found on the patient’s bedrails, bedside table, IV pole, on the mop used by the cleaning staff, on floors, walls, the patient’s toilet and sink,etc.

    In this medical (infectious) tort case, it was necessary for the patient to be admitted to hospital and have surgery to be sufficiently exposed to this persistent and toxic organism. The outcome for this patient can be factually duplicated in associated outbreaks and resulting deaths occurring both before and after this patient’s untimely death. At least in this case, I believe the systemic quality control problem; in erradicating this organism from this complex working environment, is “indivisible and deemed to be “caused” by one or all the tortious incidents” in the provision of medical care at this facility.

    Where there exists factual findings of risk and injury, due to material contributions of a complex environment (where people interact), and in the absence of direct causation under the but-for test, would “all” be deemed indivisible in establishing causation under this ruling?