Originally published in The Lawyers Weekly, May 28,
Not a causation case in the country gets adjudicated without
reference to Resurfice Corp. v. Hanke,  1 S.C.J. No.
7. In that seminal decision, the Supreme Court of Canada attempted
to clarify when the "material contribution" test for
causation displaces the "but for" test.
In order to apply the "material contribution" test,
the court found that two requirements must be met. First, it must
be impossible for the plaintiff to prove that the defendant's
negligence caused the plaintiff 's injury using the "but
for" test, and the impossibility must be due to factors that
are outside the plaintiff 's control. Second, it must be clear
that the defendant breached a duty of care owed to the plaintiff,
thereby exposing the plaintiff to an unreasonable risk of injury,
and the plaintiff must have suffered that form of injury.
After the release of Resurfice, observers complained
that the court's "clarification" of the tests for
causation gave rise to more questions than answers. Many wondered
what the thresholds set out in the decision actually mean.
However, there is at least one clear principle emanating from
the decision. The "material contribution" test cannot be
used unless it is impossible to prove causation on the
"but for" test. And yet, since Resurfice was
released, plaintiffs' counsel have been arguing, and trial
judges have been finding, that causation has been proven on the
basis of the "but for" test, and in the
alternative, finding that causation is not possible to prove
on the "but for" test such that the "material
contribution" test may apply.
While I am generally a proponent of "in the
alternative" arguments, this one stretches the limits of such
arguments beyond all recognizable borders. How can one argue that
causation is established on the "but for" test and,
alternatively, that causation is impossible to establish on the
"but for" test? This is too much sucking and blowing for
even the most skilled advocate — at least, one who wants
to maintain any degree of credibility.
Thankfully, this issue — which I have been griping
about for some time — was recently addressed by the
Supreme Court of Canada in Fullowka v. Pinkerton's of
Canada,  S.C.J. No. 5. That case dealt with the deaths
and injuries of mine workers due to sabotage that occurred during a
strike at the mine. There were multiple defendants, including the
mine, the territorial government, the security providers and the
The decision focused primarily on the duty of care, but in brief
comments on causation, the court concluded that the trial judge
should have applied the "but for" test rather than the
"material contribution" test, although it noted that
Resurfice was not available to the trial judge at the time
of the hearing. However, the court went on to say: "It was not
impossible to prove causation to the 'but for' standard.
The appellants' submissions in effect demonstrate this: their
primary position is that they did so and that the trial judge found
that they had."
In other words, the court has recognized the fundamental
inconsistency that comes from trying to assert both theories of
causation at the same time. In attempting to establish causation on
a "but for" analysis, the plaintiff undermines its
argument on the "material contribution" standard.
Recently, in Frazer v. Haukioja,  O.J. No. 1334,
the Court of Appeal, in even clearer terms, signalled that it is
improper to advance both theories of causation. The trial judge had
found causation on the "but for" test and in the
alternative, on the "material contribution" test. The
Court of Appeal found that it was an error for the trial judge to
apply the material contribution test after he reasoned his way
successfully through the "but for" test.
With any luck, these signals from higher courts will encourage
plaintiffs and trial judges alike to make an election in their
theories of causation. Advancing both theories in the alternative
strains logic to the point that is too much to bear.
Selecting one theory of causation is the more intellectually
honest approach, and one that may advance the principle of
proportionality by streamlining the issues at trial, saving both
litigants and the court system time and money. So pick your theory
Jasmine Akbarali co-chairs the Appellate Advocacy Group at
Lerners LLP in Toronto. She and Earl Cherniak acted for the
appellants in Frazer.
It's not often that our little blog intersects with such titanic struggles as the U.S. presidential race – and by using the term "titanic" I certainly don't mean to suggest that anything disastrous is in the future.
J.J. v. C.C., is an interesting case in which the court held that an automotive garage owes a duty to minor children to secure the vehicles on the premises by locking the cars and safely storing the car keys...
In Irwin v. Alberta Veterinary Medical Association, 2015 ABCA 396, the Alberta Court of Appeal found that the "ABVMA" failed to afford procedural fairness to a veterinarian undergoing an incapacity assessment.
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