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Causation in Canada Revisited: Material Contribution to Risk and the Impact of Clements (Litigation Guardian of) v. Clements

Volume 83, No. 4

January 20, 2020

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Samantha Galway

S. Gordon McKee

Gord McKee is a Senior Partner with Blake, Cassels & Graydon LLP with a national class actions and product liability practice and is a longstanding, active member of the IADC.

Samantha Galway is a second year law student at Queen's University in Kingston, Ontario. She prepared an earlier version of this paper for her first year Torts Class, in which she received the Fasken Martineau DuMoulin LLP Prize in Torts, awarded on the basis of academic excellence. Gord McKee is a senior litigation partner at Blake, Cassels & Graydon LLP, whose practices focuses on product liability and class action defence. He was co-author on an earlier article published in the Defense Counsel Journal discussing causation law in Canada.¹1 Jill Lawrie, Annie Leeks and Gordon McKee, The Test for Causation in Canada: But For, But Maybe Not, 75 Def. Couns J. 378 (2008).

At least until 2012, there was significant confusion in Canadian jurisprudence surrounding one aspect of the standard for causation in negligence actions. Canadian courts referred to this aspect as the “material contribution” test. In some of its articulations of this test, the courts were talking about a concept similar to the U.S. “substantial contributing factor” test.²2 The U.S. test was most recently discussed in the Defense Counsel Journal in an article by Anderson, et al, The Any Exposure Theory Round III: An Update on the State of the Case Law 2012 – 2016, 84 Def. Couns J. 264 (2016). But in others, they seemed to be talking about something very different. The Supreme Court of Canada had been criticized by academic commentators for its failed attempts, in its earlier decisions in cases such as Athey v. Leonati³3[1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235. and Hanke v. Resurfice Corp.⁴42007 S.C.C. 7, 1 S.C.R. 333., to clarify the law in this area. Some critics, including one of the authors of this paper, argued that these decisions only served to further complicate an already unclear area of Canadian tort law.⁵5 Lawrie, Leeks and McKee, supra n. 1, at 384; Anthony Duggan, Jacob S. Ziegel and Jassmin Girgis, Material Contribution and Quantum Uncertainty: Hanke v. Resurfice Corp., 43 CBLJ 155, 159 (2006); Gillian Demeyere, The ‘Material Contribution' Test: An Immaterial Contribution to Tort Law: A Comment on Briglio v. Faulkner, 34 U. Brit. Colum. L. Rev. 317, 318 & 323-324 (2000). In 2012, the Supreme Court addressed the issues raised in a number of these criticisms, and substantially clarified the law, drawing a clear distinction between two more precisely worded concepts - “material contribution to injury” and “material contribution to risk”. ⁶6 To add to the confusion, courts have sometimes referenced a third concept, “material increase in risk”. This concept is part of a “but for” analysis, looking at whether, from a general causation standpoint, the defendant's negligent conduct increased the risk of injury enough (e.g. more than a doubling of the risk) that the court could draw a rebuttable presumption of specific causation in respect of individuals who experienced the injury, absent evidence to the contrary; Andersen v. St. Jude Medical, Inc., 2012 O.N.S.C. 3660 at paras. 520-538, 219 A.C.W.S. (3d) 725. A discussion of this topic is beyond the scope of this paper. The former concept is nothing new or surprising, and akin to “substantial contributing factor”. The same cannot be said for the latter, however.

This paper will examine in more detail the 2012 decision of the Supreme Court of Canada in Clements (Litigation Guardian of) v. Clements,⁷72012 S.C.C. 32, 2 S.C.R. 181. and the Court's guidance regarding the material contribution to risk test. While the material contribution to risk test is now clearly part of Canadian tort law, it is a doctrine that will only rarely come into play. For this reason, the test has been referred to as the “unicorn” of Canadian law, often talked about but rarely seen.⁸8 Ryan Krushelnitzky and Peter Gibson, Material Contribution: The ‘Unicorn' of Canadian Law, Claims Canada (20112), available at www.claimscanada.ca/material-contribution-the-unicorn-of-canadian-law. Given the right fact pattern, this doctrine may be available to assist a plaintiff to establish liability in a negligence action where “but for” causation cannot be established, with or without application of the material contribution to injury test.

I. “But for'” Is Still the Default Test for Causation

Causation is one of the requisite elements that must be established to bring an action in negligence. It is required in order to link the harm inflicted on the plaintiff to the breach of duty owed by the tortfeasor.⁹9 Clements, 2012 S.C.C. 32 at para. 6. To allow recovery where an injury would have occurred absent any breach of duty on the defendant's part would neither further the goals of compensation, fairness and deterrence, nor comport with the theory of corrective justice that underlies the law of negligence.¹⁰10 Id. at para. 21

The fundamental rule for determining causation in Canada continues to be the “but for” test.¹¹11 Resurfice, 2007 S.C.C. 7 at para. 21; Clements, 2012 S.C.C. 32 at para. 8. The plaintiff must establish that but for the defendant's negligent conduct (falling below the applicable standard of care) the plaintiff would not have experienced the injury. ¹²12 Clements, 2012 S.C.C. 32 at para. 8. The defendant's conduct does not have to be the sole cause or even the most important. It just has to have been a materially contributing factor – a necessary ingredient – in the occurrence of the injury. Establishing this connection is a “factual inquiry”.¹³13 Id. Plaintiffs must establish “but for” causation on a balance of probabilities in order to succeed in their claim.

The Supreme Court of Canada in Clements reaffirmed that the court's go-to tool for determining causation remains the “but for” test. However, the Court in Clements also acknowledged that there are circumstances where it may be impossible for a plaintiff, through no fault of his or her own, to prove causation. Recognizing that “but for” may “offend basic notions of fairness and justice” in some circumstances, the Court in Clements went on to discuss and clarify when a plaintiff might seek to invoke the material contribution to risk test.

II. Clarifying “Material Contribution to Injury” vs. “Material Contribution to Risk”

One issue that arises when attempting to track the evolution of causation through Canadian jurisprudence is the ambiguous use of the term “materially contributed”. As stated by Lord Reid in McGhee v. National Coal Board,¹⁴14[1972] U.K.H.L. 7 at 2. “a [claimant] succeeds if he can [show] that fault of the defender caused or materially contributed to his injury.” The Supreme Court of Canada endorsed this principle in both Snell v. Farrell?¹⁵15[1990] 2 S.C.R. 311 at paras. 42-43, 72 D.L.R. (4th) 289. and Athey v. Leonati.¹⁶16 Athey, 3 S.C.R. 458 at para. 15. The “material contribution” that Lord Reid refers to in McGhee, and that the Supreme Court of Canada appears to be referring to in Athey,¹⁷17 Athey, 3 S.C.R. 458 at para. 41. is a material contribution to the injury.

In Snell, Sopinka J. referenced Lord Bridge's decision in Wilsher v. Essex Area Health Authority,¹⁸18[1988] 1 All E.R. 871, [1988] 2 W.L.R. 557. in which he held that if a “robust and pragmatic” approach is applied to the facts, it is possible for the Court to legitimately infer that the defendant's negligence materially contributed to the plaintiff's injury even though medical or scientific expertise cannot arrive at a definitive conclusion.¹⁹19 Snell, 2 S.C.R. 311 at para. 23. Where the defendant's act materially contributed to - was a “necessary ingredient” in the occurrence of – the injury, it is no different, in effect, from saying that “but for” that act or omission, the injury would not have occurred.²⁰20 Lawrie et al., supra n. 1, at 381. Therefore, “material contribution to injury” is encompassed within the “robust and pragmatic” approach to the “but for” causation test.

On the other hand, material contribution to risk is a completely “different beast” from “but for” causation.²¹21 Clements, 2012 S.C.C. 32 at para. 14. According to the Supreme Court of Canada in Clements, “material contribution [to risk] does not signify a test of causation at all; rather it is a policy driven rule of law designed to permit plaintiffs to recover in such cases despite their failure to prove causation.”²²22 Id. This test imposes liability not because causation is proven, but because the defendant's negligence materially contributed to the risk that injury would occur.

Confusion arose in the past because Canadian courts often referred to “material contribution” without explaining whether they were referencing a material contribution to injury or a material contribution to risk. Without these distinguishing qualifiers, readers could be misled. It is now clear from Clements that the former is part of a “robust and pragmatic” approach to the “but for” causation requirement, while the latter deals with a policy driven finding of liability where “but for” causation may be impossible to prove.

III. Evolution of the Material Contribution to Risk Test

At paragraph 25 of the Supreme Court of Canada's reasons in Resurfice,²³23 Resurfice, 2007 S.C.C. 7 at para. 25. McLachlin C.J. stated that a material contribution approach might be used where:

(i)
it is impossible for the plaintiff to prove causation using the “but for” test, on a balance of probabilities, due to factors beyond the plaintiff's control; and
(ii)
it is clear that the defendant breached a duty in a way that exposed the plaintiff to an unreasonable risk of injury; and that the plaintiff suffered that form of injury.

While the Court's articulation of the test in Resurfice left some questions unanswered,²⁴24 Lawrie et al., supra n. 1, at 384-385. including what “impossibility” meant, it was made clear in Clements that Resurfice was referring to the material contribution to risk test, and that it is not, in fact, meant to simply be a loosening of the “but for” standard—it is an entirely “different beast”.²⁵25 Clements, 2012 S.C.C. 32 at para. 14.

In Clements, McLachlin C.J. summarized and clarified the present state of Canadian law on causation in negligence as follows:

(i)
As a general rule plaintiffs cannot succeed against the defendant unless they can establish that they would not have suffered a loss “but for” the negligent act of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant's negligence caused her loss. Scientific proof of causation is not required.
(ii) ?
Exceptionally, a plaintiff may succeed by showing that the defendant's conduct materially contributed to risk of the plaintiff's injury where:

a. the loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and
b. it is impossible for the plaintiff, through no fault of her own, to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to the other as the possible “but for” cause of the plaintiff's injury, defeating a finding of causation on a balance of probabilities against any one of them.

McLachlin C.J.'s framework from Clements means that where a plaintiff seeks to rely on the material contribution to risk test, that plaintiff must establish “global but for” in regard to multiple tortfeasors²⁶26 The Court suggested that this could apply not only where the multiple tortfeasors are all defendants but also where one tortfeasor was a third party (id. at paras. 24-25 and 45). and an impossibility of establishing individual “but for” through no fault of her own.²⁷27 Id. at paras. 40-41. McLachlin C.J. quoted from Smith J.A.'s judgment in MacDonald (Litigation Guardian of) v. Goertz,²⁸282009 B.C.C.A. 358 at para. 17, 275 B.C.A.C. 68. when she stated that the material contribution to risk test is a “policy-driven rule of law designed to permit plaintiffs to recover in such cases despite their failure to prove causation.”²⁹29 Clements, 2012 S.C.C. 32 at para. 14. This principle underlines the “corrective justice”³⁰30 Id. aspect of tort law and allows recovery where denial would “offend basic notions of fairness and justice.”³¹31 Resurfice, 2007 S.C.C. 7 at para. 25.

It is noteworthy that the Supreme Court expressly considered whether “scientific impossibility” might be sufficient to engage the material contribution to risk test in a case of a single tortfeasor (as the trial judge had found in Clements), and rejected that as a sufficient basis on its own.³²32 Clements, 2012 S.C.C. 32 at paras. 37–38. The Court left open for another day the scenario that might arise in mass toxic tort litigation with multiple plaintiffs where it is established statistically that the defendant's acts induced an injury in some members of the group, but it is impossible to know which ones (id. at para. 44). Should this issue come before the court directly, it may well be resolved on the basis that the “material increase in risk” concept, articulated by the Ontario Superior Court in Andersen v. St. Jude Medical, supra, n. 6, or some variant thereon is adequate to the task using the “but for” test, and that there continues to be no need for an extension of the material contribution to risk test even in these circumstances. The Court reasoned that, because the law of negligence has never required “scientific proof” of causation,³³33 The Court noted that common sense inferences from the facts, applying a robust and pragmatic approach, may suffice (id. at para 38). it is difficult to see how its absence could be raised as a basis for ousting the usual “but for” test. The Court noted that, thus far, courts in Canada have not applied a material contribution to risk test in a case involving a single tortfeasor.³⁴34 Id. at para. 42

The Supreme Court ultimately found in Clements that, while the trial judge should not have applied the material contribution to risk test to find causation in that single tortfeasor case, he erred in his application of the “but for” test.³⁵35 Id. at para. 50. The majority felt that the judge had incorrectly insisted on scientific precision in the evidence as a condition of finding “but for” causation and accordingly ordered a new trial.

IV. Scope of Material Contribution To Risk Test

Given the evolution in Canada of the material contribution test, we look back on two benchmark cases to consider how the material contribution to risk test might have impacted the reasoning, if not the result, if these cases were decided today.

A. Cook v. Lewis

The facts in Cook v. Lewis ³⁶36 [1951] S.C.R. 830, 1 D.L.R. 1. present the perfect example of a situation where the material contribution to risk test could have been applied.³⁷37 Lynda M. Collins and Heather McLeod-Kilmurray, Material Contribution to Justice? Toxic Causation after Resurfice Corp. v. Hanke, 48 Osgoode Hall L. J. 411, 438 (2010).

In Cook, the two defendants were hunting and both defendants negligently shot into an area where another hunter was walking. One of the bullets made contact with the third hunter and injured him. It was impossible for the plaintiff to establish which of the two men had fired the bullet that hit him, so the plaintiff could not establish “but for” causation against either on a balance of probabilities.³⁸38 Cook, 1 D.L.R. 1 at para. 44.

Even though the case was actually resolved by reversing the onus of proof onto the defendant,³⁹39 Clement, 2012 S.C.C. 32 at para. 28. this case would seem to clearly fall within the two part test enunciated by McLachlin C.J. in Clements, necessary to invoke the exception to the “but for” test. Here there were two tortfeasors each of whom acted negligently, and thereby materially contributed to the risk of harm to the plaintiff. “But for” the globally negligent actions of the defendants, the plaintiff would not have been injured. Moreover, through no fault of his own, the plaintiff was unable to establish individual “but for” causation.

As may be seen from the comments below, a finding of liability, premised on material contribution to risk may have been what Cartwright J. (who wrote for the majority in Cook) was proposing all along:⁴⁰40 David Mangan, Confusion in Material Contribution, 91 Can. B. Rev. 701, 712 (2014).

If under the circumstances of the case at bar the jury, having decided that the plaintiff was shot by either Cook or Akenhead, found themselves unable to decide which of the two shot him because in their opinion both shot negligently in the direction, both defendants should have been found liable. I think that the learned trial judge should have sent the jury back to consider the matter further with a direction to the above effect.⁴¹41 Cook, 1 D.L.R. 1 at 44.

Had the material contribution to risk framework from Clements been applied in Cook, it may have permitted the Court to find liability on a more appropriate basis than a reversal of the onus of proof.

B. Athey v. Leonati

The facts in Athey v. Leonati, unlike Cook, would not support application of the material contribution to risk test. The plaintiff, Mr. Athey, was injured in two motor vehicle accidents, which occurred within three months of one another. Mr. Athey had a pre-existing degenerative disc disease, but his prior activities, including regular exercise, had not caused any significant back injury. Several months after the second accident, upon the recommendation of his physician, Athey resumed his regular exercise routine. In the process of warming up, Athey suffered a herniated disc in his lower back. This injury resulted in surgery, more physiotherapy and ultimately required Athey to leave his current job as an automobile repairman and body shop manager for a lower paying job which did not have the same physical demands.⁴²42 Athey, 3 S.C.R. 458 at paras. 2-7.

Athey v. Leonati was resolved using a robust and pragmatic approach to the “but for” test.⁴³43 Id. at para. 44. In Athey, both motor vehicle accidents were found to have materially contributed to the plaintiff's back injury (as opposed to materially contributing to the risk of injury) by exacerbating the pre-existing condition.⁴⁴44IId. at para. 47. The Court held that the defendant's negligence did not need to be the sole cause of injury,⁴⁵45 Id. at para. 17. and held that the plaintiff successfully established causation by inference:⁴⁶46 Mangan, supra n. 40, at 706. “When a plaintiff has two accidents which both cause serious back injuries, and shortly thereafter he suffers a disc herniation during a mild exercise which he frequently performed prior to the accidents, it seems reasonable to infer a causal connection” ⁴⁷47 Athey, 3 S.C.R. 458 at para. 45. between the accidents and the injury.

The situation in Athey is distinctly different from that in Cook. In Cook, it could not be said that either defendant's conduct more likely than not materially contributed to the plaintiff's injury since there was only one bullet wound and therefore only one cause.⁴⁸48 Mangan, supra n. 40, at 712. Each defendants' liability in Cook could have been grounded only in their material contribution to the risk that injury could, and did, occur.⁴⁹49 Id. In Athey, the Court found that both car accidents contributed to the plaintiff's injuries on a balance of probabilities.

V. Influence of Clements Moving Forward
A. Appellate and Trial Decisions

Clements has received positive treatment by Canadian courts over the past four years, and has been cited hundreds of times. However, it is referenced far more often as authority for the standard “but for” test than for what it said about the material contribution to risk test. This makes sense since “but for” is the leading test for causation, while material contribution to risk is merely a limited exception to the general rule.

That being said, Clements has been cited a handful of times by Canadian courts for its discussion of material contribution to risk.

In 2014, the Ontario Court of Appeal discussed the material contribution to risk test in Fowlow v. Southlake Regional Health Centre,⁵⁰50Fowlow v. Southlake Regional Hospital Centre, 2014 O.N.C.A. 193 at para. 11, 238 A.C.W.S. (3d) 754 . although ultimately decided it was inapplicable to the case based on the facts. In Fowlow, the trial judge (Stinson J.) dismissed the plaintiff's medical malpractice claim, finding that although the defendant doctor had fallen below the standard of care, the plaintiffs had failed to demonstrate that the defendant's actions, or inactions, caused Mr. Fowlow's death.⁵¹51Fowlow v. Southlake Regional Hospital Centre, 2012 O.N.S.C. 6531 at paras. 87-89, 221 A.C.W.S. (3d) 1012. On appeal, the appellants attempted to invoke the “material contribution approach”⁵²52 Fowlow, 2014 O.N.C.A. 193 at para. 9. in place of having to establish “but for” causation. In rejecting this argument, the Court of Appeal stated that, “Not only was there only a single tortfeasor in this case, but the appellants had not established it was truly impossible for them to satisfy the “but for” test.”⁵³53 Id.

Fowlow provides an example of how claimants may try to use the material contribution to risk test as a relaxed standard of causation.

B. Supreme Court of Canada

Clements has been referenced and followed twice by the Supreme Court of Canada: Henry v. British Columbia (Attorney General)⁵⁴542015 S.C.C. 24, 2 S.C.R. 214. and Ediger (Guardian ad litem of) v. Johnston.⁵⁵552013 S.C.C. 18 at para. 28, 2 S.C.R. 98. Like many lower court decisions citing Clements, Ediger references it as the leading authority on the “but for” test with no mention of the material contribution to risk test. While the Supreme Court of Canada did not directly apply the material contribution to risk test in Henry, its discussion in that case of how the doctrine might be relevant in future proceedings is instructive.

In 1983, Mr. Henry was convicted of 10 “sexual offences”, involving 8 different complainants, and was sentenced to an “indefinite period of incarceration.”⁵⁶56 Henry, 2015 S.C.C. 24 at para. 1. In 2010, the British Columbia Court of Appeal quashed all of the convictions after finding several errors with the trial proceedings. Henry subsequently brought civil suits against the City of Vancouver, the Attorney General of British Columbia and the Attorney General of Canada seeking damages for wrongful conviction and imprisonment.⁵⁷57 Id. at para. 2. Henry's suit against the Attorney General of British Columbia was based on his claim that the Crown prosecutors and the police had intentionally withheld information that was material to Henry's defense, breaching their Charter obligations. The 2015 appeal to the Supreme Court of Canada centered on the issue of Mr. Henry's right to amend his pleadings to include a claim for Charter damages resulting from intentional non-disclosure by the Crown and police.⁵⁸58 Id. at paras. 2, 99, and 138.

In its decision on the appeal of the pleadings motion, the Supreme Court of Canada discussed what would be required for Mr. Henry's claim to be successful. Moldaver J., writing for the majority, stated that a claimant would have to establish that, “‘but for' the wrongful non-disclosure [he] would not have suffered harm”. However, referencing the Court's decision in Clements, Moldaver J. went on to note that “where the claimant alleges that a wrongful conviction was caused by the failure of police to provide material information to prosecutors, and in part by the Crown's failure to disclose, then showing ‘but for' causation will not be necessary. In this scenario, the causation requirement will be satisfied if the claimant can prove that the prosecutorial misconduct contributed to the harm suffered.” ⁵⁹59 Id. at paras. 97-98. While he did not elaborate on this comment, it would seem that Moldaver J. was acknowledging the possible applicability of the material contribution to risk test in this case if “global” misconduct could be proven to have contributed to the incarceration.

Going back to McLachlin C.J.'s reasons in Clements, there must be global “but for” caused by the negligence of two or more tortfeasors and an impossibility of proving individual causation because the tortfeasors could each point to the other as the sole cause. While this case is still at the pleadings stage, it will certainly be an interesting one to follow in Canada going forward.

VI. Conclusion

Clements provided the Supreme Court of Canada with an opportunity to tie up several loose ends left hanging after its decision in Resurfice. In doing so, the Court clarified the law surrounding material contribution to risk. However, given that no Canadian court has yet applied the material contribution to risk test in a situation where “but for” causation could not be established, it is hard to predict how much the material contribution to risk test, as articulated in Clements, will actually impact Canadian law in the long-term.

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