Zombies, Vampires, Pecking Orders and Factual Causation in Tort

You’ll have to skip to about 3/4 of the way through this piece to find out why the title of this piece is what it is.

Once upon a time, but not so long ago, Canadian tort law contained a test for proof of factual causation in tort known as the material contribution (to injury) test. For those who might have forgotten, or never knew, that test seemed to have been affirmed, in Canadian tort law, by the Supreme Court in Athey v. Leonati [1996] 3 SCR 458, 1996 CanLII 183. A unanimous 7-member panel (Lamer C.J. and La Forest, Sopinka, Cory, McLachlin, Iacobucci and Major JJ.) in reasons written by Major J., stated at para. 15.

[15] The “but for” test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury: Myers v. Peel County Board of Education [1981] 2 S.C.R. 21;  Bonnington Castings, Ltd. v. Wardlaw, [1956] 1 All E.R. 615 (H.L.); McGhee v. National Coal Board, supra [[1972] 3 All E.R. 1008 (H.L.)]. A contributing factor is material if it falls outside the de minimis range: Bonnington Castings, Ltd. v. Wardlaw, supra; see also R. v. Pinske (1988), 30 B.C.L.R. (2d) 114 (B.C.C.A.), aff’d [1989] 2 S.C.R. 979.

The provincial and territorial trial and appellate judges of Canada, and many commentators, adopted this alternative approach to proof of factual causation with some relish (of many varieties), describing this approach as the Athey material contribution test. After Athey, for about a decade, the phrases “materially contributed” and “material contribution” became synonymous in the provincial trial and appellate courts. I’ve written too many words elsewhere about that issue. I won’t rehash it.

The Supreme Court, however, didn’t return to the material contribution test issue for about a decade. Walker Estate v. York Finch General Hospital, [2001] 1 SCR 647, 2001 SCC 23. The Walker Estate version of a material contribution test, whatever it meant or now means, was never the Athey version, whatever some trial or appellate judges might have thought or claimed. That ought to have been clear enough from the text of Walker Estate, itself.

When the Supreme Court finally returned to Athey material contribution in 2007 in Resurfice Corp. v. Hanke, [2007] 1 SCR 333, 2007 SCC 7 – after having rejected a decade of leave applications which asked the Court to explain this aspect of Athey – a unanimous 9-member Court (McLachlin C.J., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.) in reasons written by McLachlin CJ seemingly rejected, killed, and buried the Athey meaning of material contribution or materially contributed as a test for proof of factual causation on the balance of probability. Resurfice seemingly declared an entirely different meaning for material contribution or materially contributed which eliminated the need, under that that test, to prove factual causation on the balance of probability and, in so doing, removed the concept of “material contribution” or “materially contributes” from the but-for lexicon.

However, some judges of one appellate court, and in lockstep the subordinate trial judges, seemingly didn’t think so. They posited a distinction between “material contribution” in the material contribution test and the phrase “materially contributed”, with the latter but not the former being defined by Athey‘s “[a] contributing factor is material if it falls outside the de minimis range”. Hence, a panel of Farrant v. Laktin, 2011 BCCA 336 wrote:

[10] In Resurfice Corp. v. Hanke, 2007 SCC 7, 1 S.C.R. 333, the Supreme Court affirmed the “but for” test remains the basic test for determining causation, but developed the concept of “material contribution” in a different manner than that used in Athey, formulating a “material contribution” test as an exception to the “but for” test, a matter that is not relevant to this appeal. The Court replaced the Athey definition of “material contribution” to the plaintiff’s injury with the concept of “a substantial connection” between the injury and the defendant’s conduct. These developments were usefully summarized by Mr. Justice Smith, writing for the majority, in Sam v. Wilson, 2007 BCCA 622 at para. 109:

 “Material contribution”, as that phrase was used in Athey v. Leonati, is synonymous with “substantial connection”, as that phrase was used by McLachlin C.J.C. above in Resurfice Corp. v. Hanke. This causal yardstick should not be confused with the “material contribution test”. …

 [11] Thus, in applying the “but for” test, the trial judge was required to consider not just whether the defendant’s conduct was the sole cause of the plaintiff’s disabling pain, but also whether the plaintiff had established a substantial connection between the accident and that pain, beyond the de minimus level.

The passage in Resurfice that Farrant refers to is para. 23:

[23] 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. It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327, per Sopinka J.

As one might expect (remember stare decisis?), the Farrant passage was quoted by British Columbia Supreme Court judges, after Resurfice, as the meaning of the but-for test.

Then, in 2012, in Clements v. Clements, [2012] 2 SCR 181, 2012 SCC 32, a unanimous 9-member Supreme Court (McLachlin C.J., Deschamps, Fish, Abella, Cromwell, Moldaver and Karakatsanis JJ.), in reasons again written by McLachlin C.J., explained the meaning of but-for and reiterated the change in the meaning of material contribution. Whatever else Clements means, it unquestionably holds that the but-for test is a test based on “necessity”, not merely “substantial connection” beyond de minimus, and that “material contribution” is not a reference to some method of establishing factual causation on the balance of probability. In case anybody needs a reminder of what the Court wrote:

 [8] The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

. . . . .

 [14] “But for” causation and liability on the basis of material contribution to risk are two different beasts. “But for” causation is a factual inquiry into what likely happened. The material contribution to risk test removes the requirement of “but for” causation and substitutes proof of material contribution to risk. …

[15] While the cases and scholars have sometimes spoken of “material contribution to the injury” instead of “material contribution to risk”, the latter is the more accurate formulation. As will become clearer when we discuss the cases, “material contribution” as a substitute for the usual requirement of “but for” causation only applies where it is impossible to say that a particular defendant’s negligent act in fact caused the injury. It imposes liability not because the evidence establishes that the defendant’s act caused the injury, but because the act contributed to the risk that injury would occur. Thus, this Court in Snell and Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, raised the possibility of a material contribution to risk approach.
[Emphasis in original.]

Clements also referred to Snell’s use of “substantial connection”.

[21] Sopinka J. went on to underline the importance of establishing a substantial connection between the injury and the defendant’s negligence. The usual requirement of proof of “but for” causation should not be relaxed where the result would be to permit plaintiffs to recover in the absence of evidence connecting the defendant’s fault to the plaintiff’s injury. Thus, Sopinka J. stated that if the injury likely was brought about by “neutral” factors, that is, it would have occurred absent any negligence, the plaintiff cannot succeed. To allow recovery where the injury was the result of neutral factors would neither further the goals of compensation, fairness and deterrence, nor comport with the theory of corrective justice that underlies the law of negligence.

[Emphasis in original].

One might suppose that that Clements would have fixed the stake in Athey material contribution’s heart; that is, material contribution, by any name or any version such as “materially contributes”, as a method of proof of factual causation on the balance of probability where the meaning is anything less than “necessity”.

That supposition would be wrong. Farrant – that is, Athey’s material contributing to injury in the guise of but-for as a “substantial connection” – still lives in British Columbia, even after Clements. The most recent appearance – there other others – is Andrusko v. Alexander, 2013 BCSC 985 where the trial judge wrote:

 [95] The plaintiff must establish on a balance of probabilities that the defendant’s negligence caused or materially contributed to an injury. The defendant’s negligence need not be the sole cause of the injury so long as it is part of the cause beyond the de minimis range. Causation need not be determined by scientific precision: Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17.

[96] The primary test for causation asks: but for the defendant’s negligence, would the plaintiff have suffered the injury? The “but for” test recognizes that an award of compensation for negligent conduct should be made only where a substantial connection between the injury and the defendant’s conduct is present: Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 21-23. …

The claim that the existence of a but-for cause requires that there be a “substantial connection” between negligence and injury has been asserted by the courts (trial or appellate) of some of the other Canadian common law jurisdictions: Alberta, Saskatchewan, Manitoba, Ontario and Nova Scotia), although (seemingly) without equating “substantial connection” to “material contribution” or “materially contributes”. The screen shot below provides the CanLII search that will take you to the cases. There are some more in 2007.

(Click on image to enlarge)

Not surprisingly, none of the cases that equate but-for with substantial connection mention the Clements definition of but-for in paragraph 8 (some, after Clements, still don’t cite Clements, but just Resurfice) nor this statement in Athey, at para. 41.2: “Even if the accidents played a minor role, the defendant would be fully liable because the accidents were still a necessary contributing cause.” [Emphasis in original.]

Older hands might find that surprising (or not) because the Athey passage was commonly cited before Resurfice by judges looking to explain why the seemingly minor negligence of defendant (usually with sufficient assets, though that point isn’t mentioned) was held to be a factual cause of a plaintiff’s serious injury.

Of course, it’s possible that all that all of the judges in the “substantial connection” stream were trying to say is something about the quality of the evidence that must be adduced by the party with the onus before the courts will hold that but-for connection has been established (but that’s stretching their language) or that an actual but-for cause isn’t a legal but-for cause unless it’s also a substantial necessary connection (but that’s remoteness, not factual connection so stretching the judicial language even more).

In any event, why is the title of this piece what it is?

A Master of the Alberta Queen’s Bench once wrote that stare decisis creates a judicial pecking order in which judges lower on the pecking order are not entitled to ignore the decisions of their pecking order superiors.

[51] Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder.

[52] I am bound by decisions of Queen’s Bench judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada. Very simply, Masters in Chambers of a superior trial court occupy the bottom rung of the superior courts judicial ladder.

[53] I do not overrule decisions of a judge of this court. The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.

That statement is literally accurate. However, there is a qualification, in practice, that all lawyers and judges know. In most cases, an appeal doesn’t get to the Supreme Court of Canada without leave of that Court. The mere fact the underlying decision is wrong is not supposed to be a sufficient basis for the Court to grant leave. So, in practice, the judges of the lower courts are free to assert what they believe to be the meaning of a Supreme Court decision, even if that meaning seems at odd with the meaning of that decision, until the Supreme Court says otherwise.

That means, in practice, that trial judges have to pay close(r) attention to what their own appellate courts say Supreme Court of Canada decisions mean, until the Supreme Court says otherwise. For example, many provincial trial judges and appellate judges across Canada (and some commentators) before the Supreme Court of Canada’s decision in Resurfice certainly believed that the Alberta Court of Appeal’s explanation of the meaning of Athey material contribution, in the ABCA’s Resurfice decision, 2005 ABCA 383 at para. 14 – Where there is more than one potential cause, the “material contribution” test should be used: Walker Estate v. York Finch General Hospital [2001] 1 S.C.R. 647 at 679-680 – was exactly what the Supreme Court had meant in Athey. The Supreme Court disagreed in Resurfice, at para. 19:

[19] The Court of Appeal erred in suggesting that, where there is more than one potential cause of an injury, the “material contribution” test must be used. To accept this conclusion is to do away with the “but for” test altogether, given that there is more than one potential cause in virtually all litigated cases of negligence. If the Court of Appeal’s reasons in this regard are endorsed, the only conclusion that could be drawn is that the default test for cause-in-fact is now the material contribution test. This is inconsistent with this Court’s judgments in Snell v. Farrell, , [1990] 2 S.C.R. 311; Athey v. Leonati, at para. 14; Walker Estate v. York Finch General Hospital, [2001] 1 S.C.R. 647, 2001 SCC 23, at paras. 87-88, andBlackwater v. Plint, [2005] 3 S.C.R. 3, 2005 SCC 58, at para. 78.

In any event, once upon a time, even longer ago, a judge of the Ontario Superior Court (who later became a judge of the Ontario Court of Appeal) made the pointed and poignant observation that it “ignores reality” to expect that a trial judge will use technical principles of stare decisis to avoid applying what seems to be his or her own Court of Appeal’s current thinking on some issue. See Krever J., as he then was, in Woloszczuk v. Onyszczak (1977), 14 O.R. (2d) 732 at 739, 74 D.L.R. (3d) 554 (H.C.J.).

In speculative literature, zombies and vampires are corpses of humans and other creatures that were killed but then revived by some outside force. Zombies and vampires are part of the speculative fiction “undead”. If one takes Farrant and the “but-for as substantial connection” cases at their word, Athey material contributing to injury is not dead. It’s simply resurfaced in different clothes. (It’s the Emperor’s new raiment, as it happens. Fitting.)

Calling Dr. Van Helsing or Blade.

There’s a folk tale ( See http://www.phrases.org.uk/meanings/305250.html) that Shakespeare’s line in Romeo and Juliet that a rose would still smell the same even if known by another name had a second meaning that patrons of the English theatre at the time would have understood: not the sweet smell of the rose but the rank smell from the Rose Theatre’s not quite state of the art lavatory facilities.

Plus ça change.