Date: Thu, 12 Apr 2007 04:41

From: David Cheifetz

Subject: Canadian Causation Law, yet again

Dear Colleagues:

I’m sure that the proximity of April 1 has something to do with this: Hutchings v. Dow, 2007 BCCA 148 (CanLII).

I’m sure that the Supreme Court of Canada will take note, with interest, that the 3 members of the British Columbia Court of Appeal has decided that the SCC’s comments on material contribution in Resurfice were obiter. (I've pointed out, elsewhere, that the SCC has said that anything it says about law is binding on the lower courts, even if it is obiter. I've also pointed out that that statement, too, was obiter, but that's when the headaches start.)

On this point, some of you will and some of you won’t be familiar with this explanation for stare decisis from a very witty Alberta Master: South Side Woodwork (1979) Ltd. v. R. C. Contracting Ltd. (1989), 95 A.R. 161 at pp. 166-67, paras. 51-53, [1989] A.J. No. 111 (QL), 33 C.L.R. 43 (Alta. Q.B., Master Funduk):

Any legal system which has a judicial appeals process inherently creates a pecking order for the judiciary regarding where judicial decisions stand on the legal ladder. I am bound by decisions of Queen’s Bench judges, by decisions of the Alberta Court of Appeal and by decisions of the Supreme Court of Canada. Very simply, Masters in Chambers of a superior trial court occupy the bottom rung of the superior courts’ judicial ladder. I do not overrule decisions of a judge of this Court. The judicial pecking order does not permit little peckers to overrule big peckers. It is the other way around.

I suppose it’s also worth noting that the harm complained of in Hutchings had to be overdetermined – or else it couldn’t properly be an indivisible injury the result of both negligence and an unrelated, pre-existing condition from which the plaintiff suffered – but the BCCA said (seemingly without appreciating this problem) that it was properly handled under "but for".

Some of you know that I tried, last year, to organize a “Canadian” causation conference for the spring of this year, targeted to be held in May or June, after Resurfice probably would have been out. I failed because I couldn’t convince the practitioners' CLE organizing bodies that the topic was sufficiently important to justify the cost of bringing in academic faculty to explain the law and, as I (effectively) heard from some of the groups I contacted when they saw who the faculty would be – it was too academic. I suppose that was because I hadn't bothered to ask any high-profile litigators to lecture. All I did was try to gather as many of the leading Canadian academics who were available and whom I felt I could ask.

Some of the lurkers, here, will have probably seen recent email newsletters from the current law programs of their local lawyers’ groups announcing, breathlessly, that Resurfice v Hanke “has limited the material contribution test”.

You’ll pardon me if I don’t contain my resigned snickers.

Cheers
David

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