Date: Sat, 10 Feb 2007 08:32:57 -0500

From: David Cheifetz

Subject: Resurfice Corp. v. Hanke, 2007 SCC 7

Assuming that consuming energy by activating pixels is marginally more acceptable than spilling ink: -

I doubt that the SCC intended to suggest, in Hanke, that overdetermined cases are now instances of what they meant by "impossible to prove" factual causation on a but-for basis. At least for me, the basic reason is that Justice Abella (now on the SCC) was on the Ontario Court of Appeal panel that in 2003 decided Ontario's leading decision on the meaning of material contribution - Cottrelle v Gerrard.

Whatever other problems Hanke produces in the future - and in my Cassandra-like moments I see a host - it shouldn't be in the overdetermined analyses.

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From: Wright, Richard
Sent: February 9, 2007 11:58 AM
Subject: RE: ODG: Resurfice Corp. v. Hanke, 2007 SCC 7

Although the trial court may have been right on the negligent foreseeable risk issue, both it and the SCC seem to have confused that issue with the causation issue: the fact (if it was a fact) that the plaintiff was not confused in the particular instance does not establish that the design was not defective or that there was an inadequate failure to warn due to possible confusion of the tanks, but rather only that any negligent design or failure to warn did not matter -- did not contribute to the injury -- in the particular case.

Otherwise, the opinion simply confirms how really murky Canadian law (and judicial "analysis") is on causation. Are the overdetermined-causation (e.g. multiple fires or pollution) cases instances of "material contribution" in the (non-contribution) sense now stated, of being unable to prove actual causation but rather held liable for creation of the sort of risk that materialized?

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