Date: Thu, 31 Jan 2008 22:39

From: Neil Foster

Subject: Still More Canadian Causation Follies

Dear David and others

So as I read paras [108]-[109] of Sam v Wilson, the BCCA view is that the phrase "material contribution" has two meanings in Canadian causation law:

(1) What I would call the orthodox, Bonnington Castings, meaning - described at [108]: "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".

(2) However, when the word "test" is added, the phrase "material contribution test" means the situation referred to in Resurfice where the ordinary "but for" test cannot be satisfied - see

[109] 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. above in Resurfice Corp. v. Hanke.  This causal yardstick should not be confused with the material contribution test.  As McLachlin C.J.C. explained in Resurfice Corp. v. Hanke, at ¶¶ 24 - 29, the material contribution test applies as an exception to the but for test of causation when it is impossible for the plaintiff to prove that the defendant’s negligent conduct caused the plaintiff’s injury using the but for test, where it is clear that the defendant breached a duty of care owed the plaintiff thereby exposing the plaintiff to an unreasonable risk of injury, and where the plaintiff’s injury falls within the ambit of the risk.

So to be precise British Columbia lawyers, at least, have to specify whether they mean "material contribution" simpliciter or "the material contribution test" in the Resurfice sense.

Regards
Neil Foster

Neil Foster
Senior Lecturer, LLB Program Co-ordinator
Newcastle Law School
Faculty of Business & Law
MC158, McMullin Building
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

>>> DAVID CHEIFETZ 1/02/08 2:45 >>>

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.)

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