Over at the BC Injury Law and ICBC Claims Blog, Erik Magraken notes that the Supreme Court of Canada has granted leave to appeal the BC Court of Appeal decision in Clements v. Clements which attempted to clarify the law of causation. This follows the confusion arising from the interplay between the “but-for” test and “material contribution” test set forth in the Supreme Court of Canada’s decisions in Fullowka v. Pinkerton’s of Canada Ltd., 2010 SCC 5,  1 S.C.R. 132 and Resurfice Corp. v. Hanke, 2007 SCC 7,  1 S.C.R. 333.
[See also my previous post: First “standard of care”, then “causation”: Ontario appeal court orders new trial in medical malpractice case ,discussing the Court of Appeal for Ontario decision in Randall v. Lakeridge Health Oshawa, 2010 ONCA 537.]
In Clements v. Clements, the B.C. Court of Appeal rejected the trial judge’s factual causation analysis, stating:
 The trial judge found that even though Mrs. Clements had not established causation under the but-for test, she had done so under the material-contribution test because:
(a) the science of motorcycle dynamics is such that, through no fault of her own, it was not possible for Mrs. Clements to prove that but for Mr. Clements’s breaches she would not have been injured;
(b) Mr. Clements had breached his duty of care to her; and
(b) his breaches increased the risk that Mrs. Clements would be injured if the motorcycle became unstable.
In Resurfice Corp., the Supreme Court of Canada reaffirmed that the but-for test was the primary or default test for determining causation. In that case, Chief Justice McLachlin, in setting out the general principles that apply to the determination of causation, wrote,
21 First, the basic test for determining causation remains the “but for” test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statute.
22 This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati, at para. 14, per Major J., “[t]he general, but not conclusive, test for causation is the ‘but for’ test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant”. Similarly, as I noted in Blackwater v. Plint, at para. 78, “[t]he rules of causation consider generally whether ‘but for’ the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities.”
23 The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and the defendant’s conduct” is present. It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327, per Sopinka J.
Causation is a difficult enough exercise on its own; the material contribution test complicates matters unduly. As the British Columbia Court of Appeal in Clement v. Clement observes,
45] It is important to keep in mind that the material-contribution test discussed in Resurfice Corp. is not a test for determining factual causation. It does not provide a framework for determining whether a plaintiff has proven on a balance of probabilities that a defendant’s negligence has in fact caused harm. Rather, it provides a basis for finding legal causation when there is a possibility that the defendant’s negligent actions could have been a factual cause.
Factual causation was an issue in today’s Court of Appeal decision in Rojer v. Dorel Juvenile Group, Inc., 2011 ONCA 458. The appeal panel comprised of Goudge, MacFarland and Watt JJ.A. affirmed the trial judge’s finding that the appellant’s evidence was unreliable and that the “probable factual cause” of the appellant’s accident. The Court of Appeal also agreed with the trial judge’s finding that the appellant “likely undertook an ill conceived and unsafe activity on the stool.” The panel further noted that the “trial judge also concluded that she could not find that the wobbly steps of the stool caused or contributed to the accident. “
Without specific reference to the “but for” test, the Court of Appeal upheld the trial judge’s decision and held:
 In our view, the evidence before the trial judge permitted these findings. The appellant cannot say that the wobbly steps caused her accident. Unlike Kamin v. Kawartha Dairy Ltd. (2006), 207 O.A.C. 199, 79 O.R. (3d) 284, it cannot be said that this was the only reasonable inference that could be drawn from the evidence. Indeed, the inference the trial judge drew was that there was likely another cause, namely, the unsafe activity undertaken by the appellant. In our view, this finding was one that was open to her on the evidence.
 We recognize that it would have been preferable for the trial judge to address, if only briefly, the other issues arising in a negligence case, including duty of care, standard of care, and the breach thereof. Not only does this assist full appellate review, but it permits the parties to fully understand why the outcome was reached. But ultimately, to succeed, the appellant had to demonstrate factual causation. The trial judge found that she had no done so and, for the reasons given, we cannot interfere.
 The appeal must be dismissed. In saying this, we should not be taken to agree with the trial judge’s findings on damages. In our view, the trial judge clearly got Dr. Richards’s evidence wrong and ultimately awarded an inordinately low amount. However, given our finding on liability, we need not formally address the damages question and apart from these comments, we decline to do so.
Perhaps the Supreme Court of Canada’s jettisoning of the doctrine of “res ipsa loquitur” in Fontaine v. British Columbia (Official Administrator)  1 S.C.R. 424 is partly to blame for this current jurisprudential quagmire. Let’s wait and see if the Supreme Court of Canada actually clarifies this important area of the law of evidence.
- Robin F. Hansen, “Fullowka v. Pinkerton’s of Canada Ltd. and the Material-Contribution Test for Factual Causation in Negligence” (thetrialwarrior.com)
- Loss Causation in the SCOTUS (professorbainbridge.com)