A Little Help From My Friends (And Others) Please

Dear Friends, Colleagues, Readers,

I’m writing a paper for a CLE conference that’ll be held in Vancouver next June. I’m trying to gather anecdotal information as to whether the SCC decision in Resurfice v Hanke, 2007 SCC 7 and the “material contribution” doctrine mentioned in the case are helping plaintiffs get before-trial settlements — by using the Resurfice“material contribution” notion to get them past difficulties in proving factual causation using the “but-for” test — which are settlements that they might not have been able to get before Resurfice. I’m not after settlement details, just a yes or no.

One thing that has become clear, now that it’s almost 4 years after the release of Resurfice, is that the decision has made not the slightest difference to the result of decided cases in any but a few apparent trial aberrations. Trial results show that Resurfice is neither hurting or helping either plaintiff or defendant — though the “talking” about it is no doubt earning lawyers more money. Plaintiffs aren’t (yet) succeeding in establishing causation where they’d have failed before Resurfice (and seen their action dismissed). Defendants aren’t (yet) losing cases because there are findings of causation that wouldn’t have been made before Resurfice.

Given that, some might want to suggest — note that I’ve written that “some might want to suggest” — that perhaps, just perhaps, that while the result in Resurfice was correct, the discussion of causation principles in the reasons currently amounts to little more than more spilled ink, and wonder why this is so.

Pace, those of you who are plaintiffs’ counsel. I used “aberrations” to describe trial decisions above, because, so far, where the the plaintiff succeeded at trial and the causation issue was decided on Resurfice “material contribution,” and the case was appealed, the appellate courts have set aside that finding and either affirmed the conclusion on the basis of “but-for”, or dismissed the action if they did not. 

I figure that Slaw’s Canadian lawyer, or law-profession-related, readership is as diverse as it gets, and so is as good a place as any to start asking.

Thank you, in advance, if you have some useful information, and you are able to advise.

I appreciate that someone might have relevant knowledge but might conclude that you are precluded, by the terms of the settlement, from saying anything. I’d think that merely telling me that one is aware of a settlement where the risk to the wrongdoer that Resurfice material contribution would be applied played a significant role in the fact that settlement was reached, without more, wouldn’t be of a breach of any confidentiality obligation (unless somehow the mere fact you say something somehow breaches the obligation).


  1. In a case released today (Clements (Litigation Guardian of) v. Clements, 2010 BCCA 581), the Court of Appeal reversed a trial decision that appears to have used the “material contribution” test to find liability in a motor vehicle accident. Lengthy discussion of causation, pre- and post-Resurfice.

    Paul Dawson

  2. Thank you, Paul, for the heads up. I’m not surprised the decision was reversed. The trial judge did apply what he thought was the meaning of the Resurfice material contribution test to find that the plaintiff had satisfied the causation requirement.



  3. On first reading, there’s some good and some bad in the analysis.

    The good is the BCCA’s continued insistence that Resurfice material contribution is not a test for factual causation (para. 45). The Ontario Court of Appeal has claimed otherwise (Frazer v. Haukioja 2010 ONCA 249 at para. 41). There shouldn’t be argument about which court is right (hint: it’s not my home court).

    The bad includes the BCCA’s repetion of the Resurfice mantra that the material contribution dicta was not new law: \in Resurfice the Court was not purporting to change the law but, rather was reaffirming exisitng principles\ according to the BCCA (para. 49. I think many judges and lawyers, and especially academic lawyers (law school professors) 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.

    If that were the case (it is not), the the BCCA majority was wrong in Mooney 2004 BCCA 402, the Ont CA was wrong in Cottrelle 2003 CanLII 50091 (ONCA), and in Aristorenas 2006 CanLII 33850 (ONCA – majority). And, if they CAs were, the SCC should have granted leave. The CAs were not wrong on the law as it stood. The SCC didn’t grant leave.

    The case isn’t helpful on the question of when Resurfice mc does apply.

    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 Prof. Erik Knutsen (Queens) whose recent article is quoted extensively in Clements.