Date: Sat, 13 Nov 2004 14:01:28 -0500

From: David Cheifetz

Subject: Factual Causation, Material Contribution

Dear Colleagues:

This question is aimed at our UK and Australasian list members; however, anybody else who knows is more than welcome to pipe in.

Having recently offended (perhaps verging on likely) a handful of Canadian judges - unfortunately, if I did, it's members of the Court of Appeal in the province in which I practice - by something I wrote about one sort of contribution issue, I'm trying to write a paper in which I'll probably offend most of the rest of the Canadian judiciary, no matter how politely I word anything I say. Unfortunately, if I don't then I haven't been clear enough in the paper.

I'm trying to make some sense out of the Canadian version of the material contribution doctrine as it is used to establish factual causation (cause-in-fact). If I accomplish this task, I'll then undertake squaring the circle and providing the missing equation for Einstein's TOE. (I have too much time on my hands, no doubt).

One of the problems with the Canadian version (if one looks beyond the fact it has no consistent content and even less rigorous judicial analysis) is that one finds cases (even at the appellate level) where judges describe the material contribution test as one that can be resorted to instead of but-for. In some of those cases, the factual decision was ultimately made on a probable cause basis. However, there are others where it is impossible to tell if the factual causation decision was made based on probability or possibility - and some smell more like possibility, not the least because won't find any reference to the weight of the connection between conduct and consequence made in any words that suggest probability. There's no "likely", no "would not have" etc.

What I'm after is any English, Australian, or other Commonwealth decisions in which a judge has explicitly suggested that material contribution may be used to establish factual causation *of the injury* on the basis of a possibility standard, whether or not the facts were of a type to which the judge though but-for did or did not apply. I realize that the Fairchild material increase in risk equals material contribution to injury approach amounts to deeming a possible cause a probable cause, but that's not what I'm after immediately.

I appreciate that, in light of March v Stramere, Australian judges would probably realize their mistake immediately, or at least wouldn't consider putting the matter explicitly enough that it was clear they'd decided factual causation in favour of the plaintiff on the basis of possibility.

David Cheifetz
Bennett Best Burn LLP
Toronto, Canada

416-362-3400
416-362-2211 (Fax)

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