Supreme Court of Canada: “But For” Is The Default Test For Causation in Negligence

In a previous post entitled: “Clear as Mud: The Supreme Court of Canada to Clarify the Law of Causation“, I noted the Supreme Court of Canada’s latest opportunity to clarify the law of causation following the BC Court of Appeal decision in Clements v. Clements. The analytical confusion stemmed from the conflicting application of “but-for” test and “material contribution” test by various trial and appellate courts, following the Supreme Court of Canada’s decisions in Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5, [2010] 1 S.C.R. 132 and Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333.

David Cheifetz over at slaw.ca valiantly attempted to sort out this mess before the Supreme Court of Canada released its decision today. Frankly, my head hurts after reading his post.

Anywho, here’s a link to the Supreme Court of Canada’s decision released this morning: Clements v. Clements, 2012 SCC 32 (S.C.C.).

The majority opinion written by the Chief Justice (Deschamps, Fish, Abella, Cromwell, Moldaver and Karakatsanis JJ concurring; LeBel and Rothstein JJ. dissenting), is summarized as follows:

[46] The foregoing discussion leads me to the following conclusions as to the present state of the law in Canada:

(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant’s negligence caused her loss. Scientific proof of causation is not required.

(2) Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.

In other words: The “but for” test is the default test for causation in negligence, “but for” [pun intended] multiple tort-feasors, when, exceptionally, the “material contribution” test otherwise applies.

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3 Responses to “Supreme Court of Canada: “But For” Is The Default Test For Causation in Negligence”

  1. David Cheifetz Says:

    Antonin:

    If the SCC’s intent was to stop litigators and lower court judges taking up scarce Judaical resources “talking” about material contribution in all but the most unusual case – whatever that means – the SCC probably accomplished that.

    If the SCC wanted to bring more clarity to the process at the trial level, it didn’t help by telling the profession it’s all a matter of common sense.

    If they wanted to make factual causation decisions at first instance less subject to appellate reversal (because they’re all common sense and common sense is … what?), did they? Judges trying cases without juries will now have to explain what they mean by common sense, right?

    If they wanted to give the slavering hordes of ink spillers something to do over the summer, they accomplished that.

    If they wanted to tell the ONCA to please pay more attention to what the SCC actually wrote in Resurfice, they accomplished that, too.

    If they wanted to advance the coherence of Canadian (common law) factual jurisprudence, they failed. But, then, who really cares about jurisprudence being “coherent” … except, well, those who are supposed to. Need we ask who “those” are supposed to be?

    Cheers,

  2. Antonin I. Pribetic Says:

    David,

    Thanks for your comment. Agreed on all points. As far as “common sense” is concerned, as René Descartes said:

    “Common sense is the most widely shared commodity in the world, for every man is convinced that he is well supplied with it.”

    Cheers,

    Antonin

  3. David Cheifetz Says:

    Antonin,

    You probably recall that, immediately after Resurfice in early 2007 and for most of the first year thereafter, there were a spate of blog “infomercial” like postings on many law firms’ web sites claiming that the SCC had favourably clarified the law of causation and levelled the playing field as between defendants and plaintiffs – if the firm acted primarily for defendants – or bemoaning what the SCC had done if the firm acted primarily for plaintiffs.

    What ultimately happened over the next 5 years is that Resurfice made no difference whatsoever to the end result of cases – except in a very few cases where the plaintiff won on material contribution grounds and the decision wasn’t appealed. We never had even one reported case where a judge said “well, before Resurfice I would have found that the plaintiff had established causation using Athey material contribution, but now I can’t so I am dismissing the action. Lawyers and judges both “talked” about what they thought Resurfice meant but, in terms of actual results, it was as if Resurfice never happened.

    One lesson that most – but unfortunately not all – blogging lawyers seem to have taken from the consequences of Resurfice is to not make the bald claim that Clements clarifies the jurisprudence. While there’s no doubt realized Resurfice wasn’t adequate, and that the SCC provided what seems to be a bright-line identifying those cases to which the restated material contribution doctrine might apply, I suspect it’s dawned on many senior litigators – and I hope others, too – that the bright-line captures many very common situations that have been (conveniently, adequately, pick your adjective) treated as but-for instances for years.

    I’ll mention an obvious instance: two, separate in time, motor vehicle accidents. P is psychologically “thin-skull” because of pre-existing problems. P is seriously injured in both accidents. P’s psychiatrists both opine that either accident, alone, would probably have triggered P’s disabling PTSD. Also, P’s physical injuries in the first accident mean he’ll never work again. P’s injuries in the second accident also mean he’ll never work again, even if the first accident had never occurred.

    Of course, we can duck the “which test” problem by saying we are dealing with “indivisible damages” – a fiction by which we treat all the injuries as if they were cumulatively caused by both accidents. The rationale for that approach is precisely the explanation the SCC used for its bright line test for the material contribution doctrine, as explained paras. 39 and 46(2).

    From [39]: “All [of the wrongdoers] are at fault, and one or more has in fact caused the plaintiff’s injury. The plaintiff would not have been injured “but for” their negligence, viewed globally. However, because each can point the finger at the other, it is impossible for the plaintiff to show on a balance of probabilities that any one of them in fact caused her injury.”

    Para. 46(2) begins “Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury …”.

    It’s not so exceptional if the test applies to common-enough instances, is it?

    Apart from that, which test applies doesn’t make any difference if the extent of liability is the same (and all other consequences are the same) regardless of which test is satisfied by the plaintiff. But we don’t know that for the restated material contribution test.

    I’ll leave it at that.

    Cheers,

    David

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