The Resurfice Exception: Causation in Negligence Without Probability

117 Pages Posted: 15 Aug 2012

Date Written: August 15, 2012

Abstract

In Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, 2007 SCC 7, the Supreme Court of Canada created a new causation doctrine – a new test for causation – in Canadian negligence law. The new test is available to plaintiffs only in exceptional cases. Negligence and the possibility of specific factual causation may be sufficient to satisfy the causation requirements of a cause of action in negligence. Proof of specific factual causation on the balance of probability is not required. The justification for the doctrine is fairness and justice. The doctrine does not produce a decision that the negligence did or did not cause the injury on the balance of probability. Where the requirements of the Resurfice doctrine are satisfied, the causation requirements of the cause of action are deemed to be satisfied despite the finding that factual causation was not established on the balance of probability. The Supreme Court called the doctrine a 'material contribution' test.

The central premise of this article is that a court’s use of the material contribution to risk doctrine, as declared in Resurfice, as the basis for finding the plaintiff has established causation did not produce a finding of factual causation on the balance of probability. Rather, it produced a conclusion that the plaintiff had satisfied the causation requirements of the cause of action even though the plaintiff had failed to establish factual causation on the balance of probability. That premise may no longer be correct. The Supreme Court released its decision in Clements v. Clements, 2012 SCC 32, on June 29, 2012, a few days after the article was substantially complete. The Supreme Court restated aspects of the material contribution doctrine set out in Resurfice. Statements in Clements render aspects of my analysis of the doctrine, as set out in Resurfice, necessarily wrong. Other statements, and implications of those statements, may make the central premise of this article wrong. The analysis in Parts 1-4 of the article has not been revised to take Clements into account. I added the postscript where I discuss the Supreme Court of Canada reasons in Clements.

As such, the law discussed in this article, other than in the postscript, is the Canadian law as I believe it was immediately before the release of Clements. It may be that, as a result of Clements, it does not and will not matter to the development of material contribution jurisprudence, in Canada, whether the finding of causation made under that doctrine is a legal fiction that factual causation has been established on the balance of probability, or a policy decision that causation has been established notwithstanding that factual causation has not been established on the balance of probability. However, it matters to the analysis in Parts 1-4. In the result, while I intended and hoped that the analysis of the material contribution doctrine, in those parts, would be useful for judges and practicing lawyers, it may be that significant portions of that discussion are now of academic, historical, interest only. However, Parts 1-4 also contain some discussion of the but-for doctrine. It is my opinion that the merits of that discussion survive Clements unscathed.

Keywords: negligence, causation, cause, but-for, material contribution, risk, Canada

Suggested Citation

Cheifetz, David, The Resurfice Exception: Causation in Negligence Without Probability (August 15, 2012). Available at SSRN: https://ssrn.com/abstract=2129615 or http://dx.doi.org/10.2139/ssrn.2129615

David Cheifetz (Contact Author)

Independent ( email )

Vancouver, British Columbia
Canada

HOME PAGE: http://davidcheifetz.ca

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