Dear Colleagues:

 

Those of you who need to know about, or are interested in, Canadian law should look at the Supreme Court of Canada's latest discussion of but-for and material contribution to risk in Clements v. Clements, 2012 SCC 32.  A link is  http://canlii.ca/en/ca/scc/doc/2012/2012scc32/2012scc32.html. The rest of you needn't bother.

 

At least for now, the Canadian version of the Fairchild exception applies only where there are two or more tortfeasors whose negligence was a possible cause. The Court did not say it could not never apply but simply that Canadian law did not require the conclusion that the doctrine apply to instances where there is only one tortfeasor.

 

For those included to look, you'll see, as well, some unusual (in my opinion) statements on the manner in which the but-for test is to be used in instances of multiple sufficient causes. For example, amongst the implications of the text of Clements, taken at face value, is the claim that duplicative factual causation isn't factual causation. That's unlikely to be what the Court intended, but that's the necessary consequence of something the Court wrote. Good thing we've Quinn v. Leathem to rely on.

 

 

Cheers,

 

David Cheifetz

Smockum Zarnett Percival LLP

Toronto, Canada