Causation in Tort Since Resurfice: Overview

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1 CAUSATION IN TORT AFTER RESURFICE PAPER 1.2 Causation in Tort Since Resurfice: Overview These materials were prepared by David Cheifetz of Bennett Best Burn, LLP, Vancouver, BC, for the Continuing Legal Education Society of British Columbia, June David Cheifetz

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3 1.2.1 CAUSATION IN TORT SINCE RESURFICE: OVERVIEW A This piece contains a broad outline of the contents of a larger article titled Risk As Legal Causation: Causation In Tort In Canadian Common Law After Resurfice Corp v. Hanke which you will find online. b That article, itself, is based on an even larger analysis which you will also find online at the URL mentioned in the first footnote. Causation, in some sense, is a requirement in all civil actions in which a plaintiff seeks compensation for injury from a defendant. The action must fail if the plaintiff is not able to satisfy the causation requirement. Snell v. Farrell held: [c]ausation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former."1 Before Resurfice Corp. v. Hanke, 2 a plaintiff had to show, on the balance of probability, that the wrongful conduct of the particular defendant (or wrongful conduct for which that defendant was vicariously liable3) actually caused the loss complained of. 4 That principle also applied to actions for breach of contract. 5 There were two tests for proof or disproof of the existence of factual causation in tort: the but-for test and the Athey material- contribution test. 6 Resurfice altered that law. Resurfice created a different version of a material contribution test. Unlike the Athey version, the Resurfice version is not a test for tortious conduct that contributes to the injury. It is a test for tortious conduct which does nothing more than contribute to the risk of the occurrence of the injury which later occurred. 7 In Resurfice, the Supreme Court of Canada declared that, in certain circumstances, a plaintiff will satisfy the causation requirement by doing no more than establishing, on the balance of probability, that a defendant is at fault and that that fault created the risk of the A B Bennett Best Burn LLP, Toronto, Ontario, Canada. I have greatly benefitted from and continue to benefit greatly from ongoing discussions with Professors Lewis Klar, Vaughan Black, and Russell Brown, and from discussions with and among other members of the online Obligations Discussion Group of whom there are too many to thank, individually. An earlier version of this paper was presented at the 2008 Law Society of Upper Canada, Special Lectures Personal Injury Law, April 2, A revised version of the Summary in D. Cheifetz, Causation In Canada In The Third Millennium: Nothing Is Now Enough online at [Scraping]. The table of contents appears at the end of this article. 1 Snell v. Farrell, [1990], 2 S.C.R. 311 at 326 [Snell] SCC 7, [2007] 1 S.C.R. 333 [Resurfice]. 3 Bazley v. Curry, [1999] 2 S.C.R Stewart v. Pettie, [1995] 1 S.C.R. 131 at para. 60; Resurfice, supra, note 2, at para. 23; Athey v. Leonati, [1996] 3 S.C. R. 458 at paras [Athey]; Snell, supra, note 1. 5 Martel Building Ltd. v. Canada, [2000] 2 S.C.R.860 at para. 102, 2000 SCC 60. To be recoverable, a loss must be caused by the contractual breach in question. 6 Athey, supra, note 4. 7 Russell Brown, Material Contribution s Expanding Hegemony: Factual Causation after Resurfice Corp. v. Hanke (2007), 45 Can. Bus. L. J. 432 at 447 [Hegemony]; Vaughan Black and David Cheifetz, Through the Looking Glass, Darkly: Resurfice Corp. v. Hanke (2007), 45 Alta. L. Rev. 241 at 252 [Looking Glass].

4 1.2.2 occurrence of the very injury that the plaintiff suffered. 8 The Supreme Court described this principle as a material-contribution test. 9 In Sam v. Wilson, the BC Court of Appeal stated that the Resurfice material-contribution principle is not a test of causation at all; rather, it is a rule of law based on policy. 10 The Supreme Court did not explain whether the use of the indefinite article a rather than the definite article the means there are other valid versions of a material-contribution test in Canadian tort jurisprudence. It said nothing about the status of the material-contribution test it had established in Athey, unless we infer, from the use of a material-contribution test in Resurfice, that there may be more than one version so that the Athey version still exists. The Athey version of the materialcontribution test is another manner of proving that the tortious conduct is a factual cause of the injury. It was accepted that the Athey material-contribution test was easier to satisfy than the but-for test. 11 The general rule was that the Athey material-contribution test applied only where the but-for test was unworkable. However, the Supreme Court had indicated that there could be cases where the plaintiff could resort to the more-easily satisfied material-contribution test, even though the but-for test was not unworkable on the facts. 12 The Resurfice test is not applicable to facts to which the but-for test applies. 13 The Resurfice materialcontribution test applies to claims in tort where two requirements 14 are met. (1) The defendant owed a duty of care to the plaintiff, breached that duty, and the type of injury suffered by the plaintiff is of the type that that breach could have caused. 15 (2) It is impossible for the plaintiff to prove that the defendant s negligence caused the plaintiff s injury using the but-for test due to factors that are outside of the plaintiff s control Resurfice, supra, note 2, at paras Resurfice was a tort action. However, the consequences in practice will be wider because causation, in some sense, is an aspect of all common law causes of action. Fairchild v. Glenhaven Funeral Services Ltd., [2002] U.K.H.L. 22, [2002] 3 All E.R. 305 and Barker v. Corus (UK) Plc., [2006] U.K.H.L. 20, [2006] 2 A.C. 572 established the United Kingdom version of this fault-and-risk based material-contribution test. In Brett v. University of Reading, [2007] EWCA Civ 88 at para. 26, England s Court of Appeal wrote: In a case such as this, Fairchild exceptionally relieves a claimant who has proved exposure and breach of duty from having to prove causation. What it does not do is to relieve him from proving the other elements. In Barker, Lord Hoffmann wrote, at para. 1, that the Fairchild exception is an exceptional and less demanding test for the necessary causal link between the defendant s conduct and the damage. 9 Resurfice, supra, note 2, at para BCCA 622, at para. 109 per Smith J.A. 11 Aristorenas v. Comcare Health Services (2006), 274 D.LR. (4th) 304 at para. 60, 2006 CanLII (Ont. C.A.), leave to appeal refused 2007 CanLII (S.C.C.) [Aristonrenas]. In Sam v. Wilson, 2007 BCCA 622, at para. 109, Smith J.A. described Athey material-contribution as a causal yardstick and as a synonym for but-for. See also Brown, Hegemony, supra, note 7, at 434, and Black and Cheifetz, Looking Glass, supra, note Walker Estate v. York Finch General Hospital, [2001] 1 S.C.R. 647, 2001 SCC 23 [Walker Estate]. 13 Resurfice, supra, note 2, at para Resurfice, supra, note 2, at para Ibid., at para. 25. This is known as injury falling within the ambit of the risk. 16 Ibid., at para. 25. I have reversed the order of the requirements because causation is irrelevant absent fault or other breach of obligation owed to the plaintiff. The standard practice in common law courts is to deal with the breach of obligation issue first: see, Lewis Klar, Tort Law, 3d ed. (Toronto: Carswell, 2003) at , note 8 [Tort Law]. If there is no breach, the trial court does not have to deal with causation. However, in the appropriate case, the court might still decide the causation a damages issues. This might avoid the need for a new trial on these issues in the event the decision on breach of obligation is reversed on appeal.

5 1.2.3 According to Resurfice, the but-for question now involves asking whether there is a substantial connection between the conduct of the defendant and the injury suffered by injured person. 17 The Athey material-contribution test applies where the but-for test is unworkable. We do not have a useful explanation of the meaning of unworkable. 18 Whatever unworkable meant, in practice the Athey material-contribution test was an easier test for the plaintiff to satisfy than the but-for test. 19 Where the Athey test applied, factual causation was established by the plaintiff showing, on the balance of probability, that the tortious conduct materially contributed to the occurrence of the injury. The tortious conduct materially contributed if it is more than a de minimis contributing factor. 20 In Canadian tort law, that there cannot be tortious fault without conduct that unreasonably increases risk. All conduct increases the risk of something. Reasonably increasing risk is not sufficient for the conduct to be held to be wrongful. There will not have been a duty of care, in respect of the injury that actually occurred, unless the injury was of the type whose risk of occurring would be foreseeably increased by the type of tortious conduct in issue. Accordingly, the second criterion for the Resurfice material-contribution test will always be satisfied wherever there is a breach of duty. 21 Absent any other defence, and assuming causation, a negligent defendant in breach of a duty of care to the plaintiff will always be liable for foreseeable damage. 22 As a result, assuming breach of duty that is, assuming a finding of tortious conduct the only relevant criterion for the application of the Resurfice material-contribution test is the impossibility of proof of factual causation using but-for requirement. Resurfice has created a new situation in Canada: one where liability may be imposed on defendant(s) in the absence of factual causation. Tortious conduct (fault) may be enough. The Resurfice materialcontribution test allows one or more defendants to be held liable even though, in fact, it is not possible to show that the plaintiff s injury was probably caused by any defendant, or even by anybody s tortious conduct. In this respect, the consequences of the Resurfice material-contribution test differ from both Cook v. Lewis 23 and Hollis v. Dow Corning Corp. 24 The necessary premise in both is that the injury was actually caused by at least one of the defendants. The reverse-onus rule in Cook applies only where the plaintiff s injury was actually caused by the conduct one or the other of the defendants. The only issue is which one. In the Hollis learned-intermediary situation, the injury was actually caused by the use of the manufacturer s product. However, the manufacturer is precluded from establishing that its negligence did not make a legal difference, even if it did not. The Resurfice material-contribution test was not announced so that the Supreme Court could apply that test to the facts of Resurfice, in order to decide the appeal. It was not required and not applied. The 17 Resurfice, supra, note 2, at para Brown, Hegemony, supra, note 7, at , Ken Cooper Stephenson Justice in Saskatchewan Robes: The Bayda Tort Legacy (2007), 70 Sask. L. Rev. 269 at 303 ( there is nowhere... any sensible description of what is meant by material contribution ). See also D. Cheifetz, The Snell Inference And Material Contribution: Defining The Indefinable And Hunting The Causative Snark A Not Excessively Subtle and Theoretical Examination of Proof of Factual Causation in Canadian Tort Law (2005), 30 Adv. Q. 1 at 103 ( the content of the material contribution doctrine has all of the substance of gossamer and a thimble is all we need to contain it ). 19 Aristorenas, supra, note 11, at para Athey, supra, note 4, at paras Brown, Hegemony, supra, note 7, at 449; Black and Cheifetz, Looking Glass, supra, note 7, at 247; Klar, Tort Law, supra, note 22, at Brown, Hegemony, supra, note 7, at [1951] S.C.R [1995] 4 S.C.R. 634.

6 1.2.4 Resurfice material-contribution test is a statement of judicial policy with no stated Canadian antecedents and no explanation for its existence other than the Supreme Court s assertion that it is required by basic notions of fairness and justice. 25 The Resurfice material-contribution test is not an incremental change in Canadian common law tort jurisprudence. However, rather than explaining why it was revising some 400 years of causation jurisprudence, the Supreme Court chose to advise the profession that [m]uch judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful to catalogue the various debates. It suffices at this juncture to simply assert the general principles that emerge from the cases. 26 The Resurfice material-contribution test does not assert any general principles that emerge from any Canadian cases, common law or civil law. Resurfice does not tell us what other cases the Supreme Court might have had in mind. It is inconsistent with recent, prior, Supreme Court of Canada decisions pronounced by the majority of the judges who composed the Resurfice panel. It is not clear that there are currently any principled limits on the reach of the Resurfice materialcontribution test. Resurfice appears to represent the evolution of material contribution in causation into a generic and comprehensive alternative to the traditional but-for test, applicable to all cases where the plaintiff cannot demonstrate probable cause under the but-for test. 27 [I]f the plaintiff s only obstacle to recovery is causation, then causation is no obstacle. 28 If fault is not an issue, and causation is not an issue, the only remaining issue is damages. In the Resurfice version of the material-contribution test, 29 which is stated to apply only in exceptional cases 30 or special circumstances 31 liability may be imposed 32 on the basis of fault and the creation of risk, even though the but for test is not satisfied. 33 The stated justification is that it would offend basic notions of fairness and justice to deny liability by applying a but for approach. 34 The facts of Resurfice do not provide a context for any discussion of the scope of the new version of the test. The exceptional cases 35 and special circumstances 36 labels used in Resurfice are devoid of useful content. The impossibility requirement only appears to restrict the test to the rarest of situations. The Supreme Court wrote: [t]he impossibility must be due to factors that are outside of the plaintiff s control; for example, current limits of scientific knowledge. 37 However, the use of for example suggests that current limits of scientific knowledge is not a necessary pre-condition. In addition, the two examples that court gave are not, in fact, cases that necessarily have gaps in the evidence due to any issue involving the limits of scientific knowledge. 25 Resurfice, supra, note 2, para Resurfice, supra, note 2, para Brown, Hegemony, supra, note 7, at Brown, Hegemony, supra, note 7, at So labelled by the Supreme Court without saying anything about the status of the Athey materialcontribution test. 30 Resurfice, supra, note 2, at para Ibid., at para Ibid., at para Ibid., at para Ibid., at para Resurfice, supra, note 2, para Ibid., para Ibid., para. 25.

7 1.2.5 It is necessarily implicit in the second of the Resurfice material-contribution prerequisites fault and injury within the ambit of the risk that the tortious conduct be capable of causing the injury complained of. The injury would not, otherwise, be within the ambit of the risk. There could not be a duty of care in respect of injury which could not possibly be caused by the defendant s conduct. However, this possibility of factual causation does not eliminate the competing possibility of no factual causation. Resurfice says nothing about the situation where the possibility that the injury was not actually caused by a defendant s tortious conduct is at least equal to or greater in some relevant quantitative or qualitative sense than the possibility it was actually caused. In fact, Resurfice says nothing about any quantitative or qualitative threshold for sufficient possibility. Where there is more than one potential wrongdoer, the injury damage in respect of which the Resurfice material-contribution test is invoked will always be the same injury. That creates two issues. The first is the nature of the liability as between the injured person and the wrongdoers: solidary (joint) or proportional (several). The second is the issue of contribution between the wrongdoers, if their liability to the injured person is solidary. Resurfice says nothing about these issues, either I examine aspects of these two issues in D. Cheifetz Possibilistic Liability For Damages and Apportionment of Damages, The Continuing Legal Education Society of British Columbia, Vancouver, B.C., June 26, 2008.

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9 Risk as Legal Causation: Table of Contents I. What Is Legal Factual Causation? Why You Should Read This Article Does Legal Factual Causation Matter? If Yes, Why Does It Matter? Risk As Legal Causation II. III. IV. But-For: Not Completely Dead But Not At All Well The Meaning of Factual Cause When Does But-For Apply? What Is A Substantial Connection? But-for: Unanswered Questions Variations: Hollis v. Dow Corning The Material-Contribution Test: Yesterday, Today and Tomorrow The Material-Contribution Test, Yesterday: How We Got Here The Material-Contribution Test, Today Setting The Stage Discussion of Principles: What Is Material Contribution To Risk? Impossibility of Use of But-For Walker Estate Cook v. Lewis Impossibility Requirement Restated Ambit of Risk SCC Cases Since Resurfice Conclusion The Material-Contribution Test: Tomorrow Issues and Questions When Does Material Contribution Apply? Relevant Factors Single Multiple Causal Mechanisms Case Law One Wrongdoer or Multiple Wrongdoers Divisible and Indivisible Injuries Solidary (Joint) or Proportional (Several) Liability Apportionment Between Tortious and Non-Tortious Causes Apportionment and Risk: Contributory Negligence, Failure to Mitigate, Contribution Between Tortfeasors Mass Torts, Class Actions & Causation Unanswered Material-Contribution Questions British Columbia: The Material-Contribution Test Since Resurfice V. Damages Causation VI. Conclusion

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