Dear Colleagues:

I posed the substance of the following questions to a smaller group of colleagues whose response was "no".

If we take the Supreme Court of Canada at its word, do the requirements for qualifying impossibility under material contribution to risk, as set out in Clements v. Clements, 2012 SCC 32 at para. 46(2), http://www.canlii.org/en/ca/scc/doc/2012/2012scc32/2012scc32.html mean that all instances of double omissions must now be treated as instances where the causation question is to be decided under the material contribution to risk doctrine as it is explained in Clements? If so, then how can that test be an exceptional test?

The text of para. 46(2) is

"[46(2)]      Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or 'but for' cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone."

If we begin with the classic two-plant example, or move to instances judges are more familiar with such as two negligent drivers of motor vehicles where each driver fails to obey a traffic signal, or move to a more complicated situation in medical negligence where each physician (or nurse) fails to do something, then so long as we stipulate that each would be a but-for cause in the absence of the others, it seems to me that [46(2)] applies.

I can't see an instance of multiple tortfeasors double omission to which the Clements' threshold  wouldn't apply, regardless of whether the omissions are an instance of duplicative causation or alternative causation.

I also can't see any Canadian judge taking the Supreme Court at its literal word on this small conundrum and paradox, but that's a different problem.

I'd welcome the views of anybody inclined to comment, on list or off.

Cheers,

David Cheifetz