now published as

“Factual Causation in Negligence After Clements” (2013) 41 Advocates’ Quarterly 179

BLACK HOLES, AETHER, AND NEGLIGENCE IN THE AIR

CAUSATION IN NEGLIGENCE IN CANADA AFTER CLEMENTS

is the title of my next (and likely last) piece of any significance on factual causation in Canadian tort law. It is now available on SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2190071

The SSRN abstract is:

The article examines the changes in the law in Canada’s common law jurisdictions governing proof of factual causation in negligence after the Supreme Court of Canada’s decision in Clements v. Clements, 2012 SCC 32. The article examines the requirements of the new material contribution to risk test which is based on the possibility, but not the probability, of factual causation and the traditional but-for test which is said to be based on probability and necessity and not merely probability and sufficiency.

 The material contribution to risk doctrine was formally introduced into Canadian common law jurisprudence in 2007 in Resurfice Corp. v. Hanke, 2007 SCC 7. Clements restates and explains aspects of material contribution to risk doctrine and attempts to provide a bright-line test for those instances where the material contribution doctrine may be applicable assuming that, for qualifying reasons, the but-for test cannot be validly used to prove or disprove factual causation on the balance of probability. Clements also emphasizes the primacy of the but-for test and what is described as the common sense, robust, and pragmatic approach to the application of the but-for test.

 The focus of the article is primarily on what the law now is and the issues that creates, not what the law ought to be. However, there is some prescription; for example, the likely still quixotic suggestion that a sufficiency-based test for factual causation (such as the NESS test) is a better solution than the but-for test.

The table of contents follows.

TABLE OF CONTENTS

1.         INTRODUCTION: Negligence In The Air May Do. 4

2.         CLEMENTS. 9

3.         THE IMPOSSIBILITY REQUIREMENT. 18

4.         IMPOSSIBILITY ISSUES THAT WILL HAVE TO BE CLARIFIED.. 23

a.     Some of the Legion. 24

b.     Indivisible Injuries. 52

c.     The Walker Estate Problem.. 53

d.     Does Material Contribution Produce a Finding of Factual Causation?. 57

e.     Miscellaneous. 62

5.         SCOPE OF LIABILITY: AMBIT OF THE RISK; FAIRNESS AND JUSTICE. 72

a.     Introduction. 72

b.     Ambit of the Risk. 74

c.     Fairness and Justice. 79

d.     Remoteness. 85

e.     Conclusion. 88

6.         MATERIAL CONTRIBUTION TO RISK AND CONTRIBUTION.. 93

7.         CORRECTIVE JUSTICE. 99

8.         THE STATUS OF ATHEY MATERIAL CONTRIBUTION TO INJURY. 107

9.         SOME BUT-FOR ISSUES. 112

a.     But-for and Common Sense. 112

b.     Inference to the Best Explanation. 137

c.     NESS and Sufficiency: An Alternative to But-for. 142

10.       GENERIC EXAMPLES BY CATEGORY. 149

(a)    Instances where the evidence is sufficient for the causal connection decision to be made  149

(1)        No other causal candidate. 149

(2)        One or more other causal candidates all of which were never actionable even if wrongful 150

(3)        One or more other causal candidates all of which were once actionable even if one or more are no longer actionable. 151

(4)        One or more of the other causal candidates were never actionable even if wrongful 152

(b)   Instances where the evidence is NOT sufficient for the causal connection decision to be made on the balance of probability but that does not require the dismissal of the action. 152

(1)        No other causal candidate. 153

(2)        One or more other causal candidates all of which were never actionable even if wrongful 153

(3)        One or more other causal candidates all of which were once actionable even if one or more are no longer actionable. 154

(4)        One or more of the other causal candidates were never actionable even if wrongful 155

c.     Conclusion. 155

11.       CONCLUSION.. 156

APPENDIX. 174