Reductio ad absurdum is

A method of proof which proceeds by stating a proposition and then showing that it results in a contradiction, thus demonstrating the proposition to be false.

See Wolfram MathWorld:
<http://mathworld.wolfram.com/ReductioadAbsurdum.html>

The validity of this method of refuting a proposition was acknowledged by the Supreme Court of Canada as early as 1914 and as recently as 2000. See Townsend v. Northern Crown Bank, 49 SCR 394 at 397-98 (“That is almost a reductio ad absurdum, and Mr. Laidlaw, of course, did not assume any such untenable position, rather he tried to escape for it.”)  and R. v. Proulx, 2000 SCC 5 at para. 53, [2000] 1 SCR 61 (used to describe an analysis leading to a “penalogical paradox”).

A CanLII search done on August 23, 2012  has the earliest reported use on its database in a 1887 Ontario Court of Appeal decision and the most recent early in 2012. One of the cases produced by that search is R. v. Renouf, 2001 NFCA 56, 160 CCC (3d) 173 where, at para. 16, the Newfoundland & Labrador Court of Appeal quoted from one its 1999 decisions: “”On their face, the above results appear to defy common sense. However, the law is replete with possibilities of “reductio ad absurdum” situations which in reality do not occur regularly and, indeed, can usually be avoided by the exercise of a modicum of care.”

But then, of course, sometimes these situations do occur regularly in law and cannot be avoided even by the exercise of the utmost care (at least by a judge).

The proposition is that the material contribution doctrine as explained by the Supreme Court of Canada in Clements v. Clements, 2012 SCC 32 is incoherent.

What you’re about to read is:

(1)  an explanation that shows why the material contribution doctrine, as described in Clements v. Clements, 2012 SCC 32, amounts to a restatement of the existing indivisible injury doctrine when applied to claims that involve multiple  tortious causes with multiple wrongdoers where the evidence is that each of those causes, by itself, would have been a but-for cause of at least some of the injury and losses alleged by plaintiff;

(2)  an explanation of why one of the two categories of situation that fall within the Clements “bright line” statement of when material contribution to risk applies – the application of the doctrine premised on the assumption that plaintiff cannot validly establish factual causation on the balance of probability so but should be allowed to prove causation regardless – is a situation where the plaintiff has established factual causation on the balance of probability against at least two or more of the tortfeasors.

Reduction ad absurdum.

So, pull up  chair, grab a tipple, and let’s begin.

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Is the common law meaning of causation under the but-for test now the same in British Columbia as it is in Ontario, or Newfoundland? Or the rest of the common law provinces and territories?

Will the “meaning” of Clements v. Clements, 2012 SCCC 32, adopted in each of the Canadian common law jurisdictions be the same meaning is an “interesting” question.  Well, it is  interesting for some people. It will be interesting for plaintiff-litigants who have a choice of proper jurisdictions within which to sue. It will also be interesting for defendant-litigants who are considering a motion to have an action stayed or dismissed in one Canadian jurisdiction on the basis that another Canadian jurisdiction the proper, or the better, forum. It might also be interesting for judges deciding the certification question in a “mass tort” class action where the plaintiffs come from more than one province or territory.

It might not be the same meaning initially.

It might even take another visit to the Supreme Court of Canada to answer that question. Remember that, in the 5-year interregnum between Resurfice Corp  v. Hanke, 2007 1 SCR 333, 2007 SCC 7, the Courts of Appeal of British Columbia (and seemingly Alberta) on one side, and Ontario on the other, did not agree on the meaning of the Resurfice material contribution declarations. In addition, none of these courts ever acknowledged the existence of the other opinions.

Clements now establishes  what Resurfice must be understood to mean so the old dispute about the meaning of Resurfice does not matter.

The other question, then, is whether we will soon have a new dispute extending to the meanings of  both but-for doctrine test and material contribution doctrine.

As ever, it wouldn’t hurt to have a glass or cup of your favourite tipple nearby.

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According to the most recent reminder from the Supreme Court of Canada, the application of common sense in a robust, pragmatic, manner, will  provide the answer to the factual causation question – is the defendant’s negligence more likely than not a necessary cause of the injury – in most cases where a plaintiff alleges that the plaintiff’s injury was caused by negligence for which the defendant is responsible. See Clements v. Clements 2012 SCC 32 at paras. 9, 10, 23, 38, 46(1).

On the other hand, we must not forget that it was once “Western” common sense that witches existed; the Earth was flat, the centre of the universe, and the Sun rotated around the Earth; Heaven and Hell were physical places; diseases were caused by an imbalance of humours; if one could travel fast enough, one could catch light; women were the property of men; Homo Sapiens did not evolve from earlier forms of hominid but has always had its current form; and creation occurred on the night preceding Sunday, 23 October 4004 BCE (by the Julian calendar).

Really.

A good friend reminded me, recently, that there are parts of Canada where some the items in that list are taken as gospel. (He wasn’t referring to Ottawa.)

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