The Test for Causation in Canada: But for, but ... Maybe Not

PRIOR to Canada's Supreme Court decision in Resurfice Corp. v. Hanke, (1) there was significant confusion (and significant controversy) over the accurate statement of the causation test in Canada. Despite the apparent attempt to put an end to both the confusion and the controversy, it is the authors' view that the decision has done little to clear up the confusion and, judging by the volume of commentary on the decision, has only fueled the controversy. On its face, the decision sets out a straightforward rule that the primary test causation remains the for test and allows exceptions to that rule only in special circumstances. In this paper, we will review the significant causation decisions of the Supreme Court of Canada leading up to Resurfice, review the clarification outlined in the decision, and conclude that there are still significant unsettled issues in the law of causation in Ontario. 1. Background There are a number of very thorough academic analyses of the evolution of the law of causation generally and of the effect of Resurfice in particular. Some of the commentators on Resurfice suggest that the decision has made it easier to establish causation, some say it is now harder to establish causation and some say it has not changed the law at all. (2) It is not yet clear which of these commentators will prove correct in Ontario. To date, the Ontario Court of Appeal has steered clear of grappling with the exceptions to the primary test and has held fast to the for test causation. It will be interesting to see how the exceptions are treated when a special circumstances case comes before that Court. A. To start with the obvious (and the least controversial), causation is used by courts to determine whether a particular defendant can and should be held liable to a particular plaintiff. According to the Supreme Court of Canada, Causation is an expression of the relationship that must be found to exist between the tortious acts of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former. (3) In products liability cases, as with all negligence cases, assuming the other elements of negligence have been established, the plaintiff bears the burden of proving, on a balance of probabilities, that the act or omission constituting the negligence of the manufacturer, distributor or retailer of the product caused the plaintiff's injuries. If the plaintiff fails to prove causation, the products liability claim necessarily fails. B. The But For Test The for test can be simply and precisely articulated: A plaintiff must prove, on a balance of probabilities, that but the negligence of the defendant, the plaintiff's injury would not have occurred. The for test was cemented into Canadian causation law by the Supreme Court of Canada in 1972. (4) C. The Material Contribution Test In 1996, Athey v. Leonati launched confusion and controversy over what has been described as the test. (5) Unlike the for test, the material contribution test eludes precise articulation. Mr. Athey had suffered from minor back problems since 1972 and was injured in two motor vehicle accidents in 1991. These accidents occurred within two months of each other. Some months after the two motor vehicle accidents, Mr. Athey's condition improved and his physician suggested that he try to resume his regular exercise routine. While stretching during a warm up at the gym, the plaintiff heard a pop in his back, and by the next morning he was unable to move. Mr. Athey was diagnosed with a disc herniation and sustained serious, long lasting injuries. The question was whether the motor vehicle accidents that were the subject of the lawsuit caused the plaintiff's injury. The Supreme Court of Canada was faced with a trial decision in which the trial judge approached the matter without correctly distinguishing between the test causation and the test apportionment of liability between tortious causes. …

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