|
Date: Sat, 29 Mar 2008 03:55 From: David Cheifetz Subject: Canadian Causation Conundrum: Resurfice and Athey
Dear Colleagues Some of you know I'm giving a lecture, next week, in Toronto, on the some of the consequences and implications of Resurfice to factual causation in Canadian negligence law. I'd like to run a straw poll, here, on the membership's views of the status of the Athey version of the material-contribution test post Resurfice. What follows is what I think is a list of everything in Resurfice that might be relevant to whatever analysis one makes to arrive at one's conclusion.
Cheers,
_____________ 1. What does para 29 of Resurfice mean to the status of the Athey version of material contribution? (There are some BCSC cases that imply it still exists; however a recent BCCA case implicitly defined that test out of existence.) 2. Resurfice para 29: “In this case, the Court of Appeal erred in failing to recognize that the basic test for causation remains the “but for” test. It further erred in applying the material contribution test in circumstances where its use was neither necessary nor justified.” 3. The material contribution test the Alberta CA applied was the Athey version, not the new Resurfice version. 4. The Supreme Court of Canada merely says the Alberta CA erred “in applying the material contribution test in circumstances where its use was neither necessary nor justified”. That test was the Athey version, not the Resurfice version. 5. The SCC did not say that the Athey version no longer exists. What does this silence mean? 6. Is it implicit in paras 21-28 of Resurfice, 2007 SCC 7, that the Athey version no longer exists? 7. Athey is cited in para 22 as authority for the proposition that tests other than but-for may exist, but there’s no mention of the type of test. 8. It would have been very easy for the SCC to say in paras 21-28 that the Athey version of material contribution is no longer good law. Yet the SCC is completely silent. 9. Oversight? Or did the SCC expect us to recognize that by defining the material contribution test in risk terms we should understand that the Athey version is defunct? 10. Is there room for another flavour of test that determines whether conduct is a cause of injury? 11. The SCC did not say that but-for is the only test for establishing that conduct is a factual cause. It said that but-for is the “basic test” (para 21) and the “primary test” (para 22) and “as stated in Athey, the “general but not conclusive test” (para 22). 12. Para 24 does not state that the new material contribution test is the only exception (variation) to the traditional but for test: It says only that “in special circumstances, the law has recognized exceptions to the basic ‘but for’ test, and applied a ‘material contribution’ test”. Can’t read this to mean SCC saying that material contribution is the only exception (variation). 13. So, all of these phrasings (could) leave it open that there is another test for conduct that is a cause of injury. 14. If the SCC did not mean to eliminate the Athey version of material contribution, then in what circumstances where the facts could allow a conclusion that the conduct is a factual cause of injury is the Athey material contribution to be used (or some other test) rather than the but-for test (as explained by Snell?) 15. Note that Sam v. Wilson (BCCA) has recently defined ‘substantial connection’ to mean more than de minimis, so combined the Athey material contribution and traditional but-for into one test. This is certainly wrong if Athey still exists as separate version of a test establishing factual causation.
<<<< Previous Message ~ Index ~ Next Message >>>>>
|
»
»
»
»