Originally published in The Lawyers Weekly, May 28, 2010
Not a causation case in the country gets adjudicated without reference to Resurfice Corp. v. Hanke, [2007] 1 S.C.J. No. 7. In that seminal decision, the Supreme Court of Canada attempted to clarify when the "material contribution" test for causation displaces the "but for" test.
In order to apply the "material contribution" test, the court found that two requirements must be met. First, it must be impossible for the plaintiff to prove that the defendant's negligence caused the plaintiff 's injury using the "but for" test, and the impossibility must be due to factors that are outside the plaintiff 's control. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury.
After the release of Resurfice, observers complained that the court's "clarification" of the tests for causation gave rise to more questions than answers. Many wondered what the thresholds set out in the decision actually mean.
However, there is at least one clear principle emanating from the decision. The "material contribution" test cannot be used unless it is impossible to prove causation on the "but for" test. And yet, since Resurfice was released, plaintiffs' counsel have been arguing, and trial judges have been finding, that causation has been proven on the basis of the "but for" test, and in the alternative, finding that causation is not possible to prove on the "but for" test such that the "material contribution" test may apply.
While I am generally a proponent of "in the alternative" arguments, this one stretches the limits of such arguments beyond all recognizable borders. How can one argue that causation is established on the "but for" test and, alternatively, that causation is impossible to establish on the "but for" test? This is too much sucking and blowing for even the most skilled advocate — at least, one who wants to maintain any degree of credibility.
Thankfully, this issue — which I have been griping about for some time — was recently addressed by the Supreme Court of Canada in Fullowka v. Pinkerton's of Canada, [2010] S.C.J. No. 5. That case dealt with the deaths and injuries of mine workers due to sabotage that occurred during a strike at the mine. There were multiple defendants, including the mine, the territorial government, the security providers and the union.
The decision focused primarily on the duty of care, but in brief comments on causation, the court concluded that the trial judge should have applied the "but for" test rather than the "material contribution" test, although it noted that Resurfice was not available to the trial judge at the time of the hearing. However, the court went on to say: "It was not impossible to prove causation to the 'but for' standard. The appellants' submissions in effect demonstrate this: their primary position is that they did so and that the trial judge found that they had."
In other words, the court has recognized the fundamental inconsistency that comes from trying to assert both theories of causation at the same time. In attempting to establish causation on a "but for" analysis, the plaintiff undermines its argument on the "material contribution" standard.
Recently, in Frazer v. Haukioja, [2010] O.J. No. 1334, the Court of Appeal, in even clearer terms, signalled that it is improper to advance both theories of causation. The trial judge had found causation on the "but for" test and in the alternative, on the "material contribution" test. The Court of Appeal found that it was an error for the trial judge to apply the material contribution test after he reasoned his way successfully through the "but for" test.
With any luck, these signals from higher courts will encourage plaintiffs and trial judges alike to make an election in their theories of causation. Advancing both theories in the alternative strains logic to the point that is too much to bear.
Selecting one theory of causation is the more intellectually honest approach, and one that may advance the principle of proportionality by streamlining the issues at trial, saving both litigants and the court system time and money. So pick your theory of causation...please!
Jasmine Akbarali co-chairs the Appellate Advocacy Group at Lerners LLP in Toronto. She and Earl Cherniak acted for the appellants in Frazer.
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