Through the Looking-Glass, Darkly: Resurfice Corp. v. Hanke

15 Pages Posted: 25 Jul 2012

See all articles by Vaughan Black

Vaughan Black

Dalhousie University - Law School

David Cheifetz

Bennett Best Burn LLP Barristers & Solicitors

Date Written: 2007

Abstract

The Supreme Court of Canada's brief reasons in Resurfice Corp. v. Hanke will likely have effects disproportionate to their length. Hanke purports to mark a defendant-favouring turn in civil liability. Hanke asserts that the but-for test is the test for factual causation in almost all accidentally-caused injuries. This aids defendants because it eliminates from ordinary use what some lawyers and judges have asserted is a more easily satisfied alternative to the but-for test, the material contribution test. If judges pay attention to the advertised goal of Hanke, there will be cases where factual causation is not established under the but-for test, where it likely would have been under material contribution.

Causation is an area that has been characterized by uncertainty for at least five decades. Hanke attempts to reduce that. However, given Hanke's content, we believe that this attempt has mostly failed. The clarity or certainty it adds to the murky case law is minimal. It is doubtful that Hanke's laudable objective of rendering use of the material contribution test an exceptional event will come to pass. In both respects, Hanke is a missed opportunity

Keywords: Supreme Court of Canada, civil liability, factual causation, accidental injury, material contribution test, but-for test, Hanke

Suggested Citation

Black, Vaughan and Cheifetz, David, Through the Looking-Glass, Darkly: Resurfice Corp. v. Hanke (2007). Alberta Law Review, Vol. 45, No. 1, 2007. Available at SSRN: https://ssrn.com/abstract=2116551

Vaughan Black (Contact Author)

Dalhousie University - Law School ( email )

6061 University Avenue
6061 University Ave
Halifax, Nova Scotia B3H 4H9
Canada

David Cheifetz

Bennett Best Burn LLP Barristers & Solicitors ( email )

1700-150 York St.
Toronto, Ontario M5H 3S5
Canada
416-362-3400 (Phone)
416-362-3411 (Fax)

HOME PAGE: www.bbburn.com

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