[Originally posted on  Slaw.ca – Sept 15, 2012]

But for the moment we’ll stick to k-k-k-k-k-causation and contribution.

Does Clements-Resurfice material contribution apply between tortfeasors claiming contribution?

Is there any reason in principle not to allow contribution between tortfeasors where their liability to the plaintiff is based on material contribution?

I can’t see one.

(Other than that if we take Clements at face value its ratio deals only with causation injury in claims for damages in claims based on negligence.)

In principle, there is nothing about the  material contribution doctrine to risk doctrine that necessarily limits it to being a basis for causation of plaintiff’s claims for damages.

Causation is causation is causation.

(You won’t find an answer in the contribution statutes. Trust me on that one.)

Pull up a chair, etc. This one is somewhat long.

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This is an excerpt (with modifications) from the conclusion (Part 11) of “Black Holes, Aether“.

Whatever the Supreme Court might have intended by its restatement and explanation of the material contribution doctrine in Clements v. Clements, 2012 SCC 32, the Clements  and Resurfice Corp v. Hanke 2007 SCC 7 reasons barely begin the process of clarifying the jurisprudence. If the Resurfice reasons moved the jurisprudence even one small step forward out of the shallower portions of the mire, they concurrently pushed it at least two larger strides back into deeper quagmire. The Clements reasons, because of what the Court said about both the but-for test and the material contribution doctrine, are, at best, one small step back towards the shore. Part of my conclusion in Cheifetz, “Snell Inference” [“The Snell Inference And Material Contribution: Defining The Indefinable And Hunting The Causative Snark – A Not Excessively Subtle and Theoretical Examination of Proof of Factual Causation in Canadian Tort Law” (2005) 30 Adv. Q. 1]  about the state of Canadian jurisprudence on the meaning of factual causation in tort, then, was that “clarity, predictability and ease of use are not defining characteristics”. One can now predict that the but-for test will be used in most actions in tort based on negligence; otherwise, the conclusion remains correct. Resort to the smokescreen of common sense will not increase clarity or predictability.

…

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This is an excerpt, with modifications, from Part 9 (“Some But-for Issues”) of “Black Holes, Aether“. Part 9 examines some of the problems in what Clements says about the but-for test and how that test is to be applied.

The only test the Clements acknowledges for proof of factual causation on the balance of probability is the but-for test.

         The test for showing causation is the “but for” test. The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ― in other words that the injury would not have occurred without the defendant’s negligence. This is a factual inquiry. If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fail.[1]

The text of Clements suggests that the Supreme Court currently does not recognize any test for proof of factual causation on the balance of probability other than the but-for test.[2] There is nothing in Clements that provides any basis for concluding that the Supreme Court would recognize any other test for proof of factual causation on the balance of probability.

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This is Part 9.c of “Black Holes, Aether“. As usual, the footnotes have been renumbered and modified to make the excerpt sufficiently self-contained.

There is a test for factual causation which better, broader, and far easier to use than the but-for test. It is better and broader because the test is capable of identifying all known instances of factual causation. It is easier to use because it does not require the judge or jury to undertake the metaphysical “what would have happened if” counterfactual analysis which is the defining characteristic of the but-for test. The test is known by the acronym “NESS”. The acronym stands for Necessary Element of a Sufficient Set.[1] As the acronym indicates, the NESS test is based on the premise that there is a set of factors which cumulatively make up a cause of the injury and the defendant’s negligence is a necessary element of that set. One seminal distinction between the NESS test and the but-for test is that the “is the negligence of this defendant a cause the plaintiff’s injury” question is answered by asking if the set of factors that necessarily includes the negligence is sufficient to have been a cause of the injury. If the answer to that question is yes, then the negligence of the defendant is a factual cause. The consequence is that the NESS test allows the existence of more than one sufficient causal set. It contemplates the existence of multiple sufficient causes. The “pointing finger” problem that troubled the Supreme Court in Clements does not arise except in the limited situation of cases where the causal alternatives are true alternatives – alternatives in the sense that if any one was a factual cause then all of the others were, in fact, not.

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This excerpt is the complete text of Part 10 of  “Black Holes, Aether”. The footnotes have been renumbered. Full cites added where needed to make the excerpt as self-contained as plausible.

10.       EXAMPLES BY CATEGORY

I outline, in this Part, how factual causation law is to be applied after the judge or jury has made the required findings of fact on the issue of whether the evidence permits the conclusion that, on the balance of probability, a wrongdoer’s negligence was or was not a part of the set of events that was a factual cause of the injury.

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