Date: Thu, 31 Jan 2008 15:45

From: David Cheifetz

Subject: Still More Canadian Causation Follies

Dear Colleagues

According to the British Columbia Court of Appeal, in Sam v. Wilson 2007 BCCA 622 there is enough evidence for a valid but-for connection between conduct and harm, which requires a substantial connection (Blackwater v Plint taking from Snell v Farrell), where there is more than a de mimimis connection as that phrase was used in Athey v Leonati.

The BCCA attempted to provide a positive statement on the meaning of “substantial connection” as used in Resurfice v. Hanke 2007 SCC 7. Remarkably, the BCCA did that by defining but-for causal-conduct and “substantial connection” to mean more than de minimis as used in Athey v Leonati; that is, by defining “substantial connection” to mean “material contribution” as used in Athey. Citing Athey, Sam asserts: “Where indivisible damage would not have occurred but for the combination of multiple tortious causes each tortfeasor is jointly and severally liable with the others for the whole of the damage so long as his acts or omissions made a material contribution – beyond de minimis – to the damage”. (Sam, para. 108). Smith JA then explained: “‘Material contribution’, as that phrase was used in Athey v. Leonati, is synonymous with ‘substantial connection’, as that phrase was used by McLachlin C.J.C. … in Resurfice Corp. v. Hanke.” (Sam, para. 109) On the other hand, it may not be so remarkable if we remember that this, in effect, is what Smith JA (who wrote the majority Sam reasons) did Mooney v. British Columbia (Attorney-General) 2004 BCC 402. However, there, Smith JA had stated, at para. 191, the evidence was not strong enough: “Further, I agree with Mr. Justice Hall’s comments, at para. 144 above, that the trial judge’s findings were soundly based in the evidence. In my view, the trial judge did not err in concluding that a causal contribution ‘of little if any significance’ did not meet the de minimis material contribution test of causation”.

Sam v. Wilson at least explicitly recognizes that the Resurfice material-contribution test is not the Athey material-contribution test and that the Resurfice version is not a test for the existence of actual factual causation: “it is not a test of causation at all: rather, it is a rule of law based on policy.” (See para. 109.)

David Cheifetz

<<<< Previous Message  ~  Index  ~  Next Message >>>>>