Who’s The Boss (2): The Current Boss vs The Old Boss

Who’s The Boss (1) is here.

Peter Townshend, of The Who fame, wrote “Meet the new boss / Same as the old boss” as part of the lyrics to “Won’t Get Fooled Again“.

But this post isn’t about The Who.

Nor is this about Bruce Springsteen, but I suspect the mere fact I’ve used that name may get more automated looks at this message than I’d get if I’d written “Phil Ochs” of “Joe Btfsplk”. Not that I write for tweets or followers, of course. Heaven forfend.

Well, I could hope that I had nine particular followers, or at least 4 of 9 plus one to come, but I’m not holding my breath.

“Old(er)” boss

Athey v. Leonati [1996] 3 SCR 458, 1990 CanLII 183  – the bold emphasis emphasis is mine – it’s just underlining in the reasons

[41]     The applicable principles can be summarized as follows. If the injuries sustained in the motor vehicle accidents caused or contributed to the disc herniation, then the defendants are fully liable for the damages flowing from the herniation. The plaintiff must prove causation by meeting the “but for” or material contribution test. Future or hypothetical events can be factored into the calculation of damages according to degrees of probability, but causation of the injury must be determined to be proven or not proven. This has the following ramifications:

2.   If it was necessary to have both the accidents and the pre-existing back condition for the herniation to occur, then causation is proven, since the herniation would not have occurred but for the accidents. Even if the accidents played a minor role, the defendant would be fully liable because the accidents were still a necessary contributing cause.

[43]      The findings of the trial judge indicate that it was necessary to have both the pre-existing condition and the injuries from the accidents to cause the disc herniation in this case. …

[44]      The trial judge’s conclusion on the evidence was that “[i]n my view, the plaintiff has proven, on a balance of probabilities, that the injuries suffered in the two earlier accidents contributed to some degree to the subsequent disc herniation”. She assessed this contribution at 25 percent. This falls outside the de minimis range and is therefore a material contribution: Bonnington Castings, Ltd. v. Wardlaw, supra. This finding of material contribution was sufficient to render the defendant fully liable for the damages flowing from the disc herniation.

[If anyone is looking for proof that, once upon a time, some members of the the Supreme Court didn’t think that material contribution meant material contribution to risk, one can’t find better proof than para. 44 of Athey. Well … ok. Actually one can in Walker Estate. It’s at least as good. But, I digress.]

Current Boss

Resurfice Corp. v. Hanke, [2007] 1 SCR 333,  2007 SCC 7

[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.

Clements v. Clements2012 SCC 32 – the bold emphasis emphasis is mine – it’s just underlining or italics in the reasons

 [20]     Cook was considered in Snell. The plaintiff in Snell had undergone surgery to remove a cataract. Bleeding occurred. When the bleeding cleared up nine months later, it was found that the plaintiff’s optic nerve had atrophied, causing loss of sight in her right eye. Neither of the expert witnesses was able to state what caused the atrophy or when it had occurred. The trial judge, upheld by the Court of Appeal, did not apply the usual “but for” test, but applied a reverse onus test. This Court affirmed recovery, but on the basis of a robust and common sense application of the “but for” test. However, Sopinka J. suggested that had it been necessary and appropriate, a material contribution to risk approach might have been applicable:

I have examined the alternatives arising out of [McGhee v. National Coal Board, [1973] 1 W.L.R. 1 (H.L.)]. They were that the plaintiff simply prove that the defendant created a risk that the injury which occurred would occur. Or, what amounts to the same thing, that the defendant has the burden of disproving causation. If I were convinced that defendants who have a substantial connection to the injury were escaping liability because plaintiffs cannot prove causation under currently applied principles, I would not hesitate to adopt one of these alternatives. In my opinion, however, properly applied, the principles relating to causation are adequate to the task. [Emphasis added; pp. 326-27.]

[21]    Sopinka J. went on to underline the importance of establishing a substantial connection between the injury and the defendant’s negligence. The usual requirement of proof of “but for” causation should not be relaxed where the result would be to permit plaintiffs to recover in the absence of evidence connecting the defendant’s fault to the plaintiff’s injury. Thus Sopinka J. stated that if the injury likely was brought about by “neutral” factors, that is, it would have occurred absent any negligence, the plaintiff cannot succeed. To allow recovery where the injury was the result of neutral factors would neither further the goals of compensation, fairness and deterrence, nor comport with the theory of corrective justice that underlies the law of negligence.

 Person Who is Required, During Working Hours, To Listen to the Current Boss

Hardychuk v. Johnstone2012 BCSC 1359

[125]   The primary test for causation is the “but-for” test: but for the defendant’s negligence would the plaintiff have suffered the injury? In exceptional circumstances (which do not arise in this case), the “material contribution” test may be applied. The “but-for” test recognizes that the plaintiff is entitled to compensation for negligent conduct only where there is a substantial connection between the injury in question and the defendant’s conduct: Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), 2007 SCC 7.

Clements isn’t mentioned in Hardychuk. Let’s put aside the question of whether para. 125 of Hardychuk is an accurate paraphrase of Resurfice and ask whether it’s an accurate statement of Clements. (I’m not going to answer that question.)

We should be able to agree that para. 125 of Hardychuk isn’t an accurate paraphrase of Athey para. 41.2. I’m prepared to admit that even common sense would find a difference between a rule that says “even a minor role is enough, so long as it’s a necessary role” and a rule that says that the role has to be a substantial role.

Athey is cited in Hardychuk, but not for para. 41.2.

No – the trial judge did not suggest that “substantial” was being used as a place marker for “not remote”. The paragraph after [125] segues into the judge’s statement of damages assessment principles.

Let’s assume that the trial judge meant what she wrote. A but-for cause requires her to find a substantial connection between the injury and the negligence. If you’re inclined to, read the reasons and ask yourself whether that view of the law affected the trial judge’s conclusion as to what injuries H sustained or the value of those injuries.

Or whether the trial judge was simply quoting a now accepted mantra in BC and then decided the case in a manner that’s consistent with the evidence and in accordance with the law as set out in …

Yeah, well, you get my point.

Or, rather,  H. Dumpty J.’s: “When I use a word … it means just what I choose it to mean — neither more nor less. ” And, [t]he question is … which is to be master — that’s all.”

[We now return you to your regularly scheduled programme.]


  1. David Cheifetz

    Back to Ottawa, eventually, I expect, at somebody’s expense. Perhaps sooner than one might have anticpated if the SCC chooses to discuss the issue again in its reasons in the Ediger appeal because that case only has one tortfeasor. Plaintiff’s 2d argument – if the but-for argument doesn’t succeed – is one based on the creation of risk, even if it’s not the material contribution to risk doctrine where there’s (notionally) a possibility of causation. The 2d argument in Ediger dispenses with the conceit that the negligence had to be at least a possible cause.

    In the meantime? There seems to be a few sayings that could apply. Third time lucky. Three strikes you’re out. What I tell you three times is true. Three coins in the fountain. Third star on the right and straight on … I’m sure there are others.

  2. David Cheifetz

    So long as you’re in a BC court, or in front of a BC judge where precedent matters, it’s whatever the BCCA says it is. (Substitute for the province as appropriate.)


    Wait until Hall J.A. or Smith J.A. retire and they feel free to speak extra-judicially without having to speak extra-judicially. (I’m not speaking from inside knowledge. I’m guessing.)

    Or pick up the next part of the Advocates’ Quarterly. It’ll be out later this month or early in October The piece is called, in part, “The Resurfice Exception” which sketches some of problems in Clements.

    Or, download the longer version from SSRN: http://ssrn.com/abstract=2129615. It’s longer because it’s an examination of what material contribution seemed to be after Resurfice and before Clements.

    Or, wait a month or two (or maybe less) for the piece that combines both Clements but-for and Clements material contribution in the post-Clements (not quite post-apocalyptic) world. It’s not quite the feat that combining general relativity and quantum mechanics would be but, then, those theories have to to be internally and externally coherent, or they’d be wrong.

    Or, convince the judge to do things the Australian way. As best as I can tell from the recent edition of Fleming (10th) – Flemings’ Law of Torts – the common sense way amounts to answering the causation question the Australian way. (Exactly what that way is may be an issue on which reasonable people would differ.)

    By the way, you’re the first one to comment. I’ll let you decide what that means. There’s probably a door prize, somewhere.



  3. Brian Babcock

    Breathlessly awaiting the proposed resolution,i.e, a coherent and logical principled expression of causation in simple enough language that even B. C. judges understand it.

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