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Causation - Cause-in-Fact versus Cause-in-Law (Proximate Cause) (2). Aylmer Meat Packers Inc. v. Ontario [cause-in-fact and cause-in-law]
In Aylmer Meat Packers Inc. v. Ontario (Ont CA, 2022) the Court of Appeal considered a lawsuit by an abattoir against the province:(a) The Causation Governing Principles
[87] For it to incur liability for damages, the Ministry’s conduct must have been a cause-in-fact of Aylmer’s injury, based on the well-known “but for” test in Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at paras. 6-10; and, Donleavy v. Ultramar Ltd., 2019 ONCA 687, at para. 63, per van Rensburg J.A.
[88] The Ministry must also have been the cause-in-law of Aylmer’s injury. That is, the risk of the actual injury suffered by the plaintiff as a result of the defendant’s wrongful conduct must not be so remote that it would not be foreseeable to a reasonable person in the defendant’s position: Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63, [2017] 2 S.C.R. 855, at para. 79. And, see, Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 (CanLII), [2008] 2 S.C.R. 114, at para. 13, citing Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty., [1967] A.C. 617 (P.C.), at p. 643. . Nelson (City) v. Marchi
In Nelson (City) v. Marchi (SCC, 2021) the Supreme Court of Canada considered an issue of causation:[96] It is well established that a defendant is not liable in negligence unless their breach caused the plaintiff’s loss. The causation analysis involves two distinct inquiries (Mustapha, at para. 11; Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, at para. 13; Livent, at para. 77; A.M. Linden et al., Canadian Tort Law (11th ed. 2018), at p. 309-10). First, the defendant’s breach must be the factual cause of the plaintiff’s loss. Factual causation is generally assessed using the “but for” test (Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at paras. 8 and 13; Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333, at paras. 21-22). The plaintiff must show on a balance of probabilities that the harm would not have occurred but for the defendant’s negligent act.
[97] Second, the breach must be the legal cause of the loss, meaning that the harm must not be too far remote (Mustapha, at para. 11; Saadati, at para. 20; Livent, at para. 77). The remoteness inquiry asks whether the actual injury was the reasonably foreseeable result of the defendant’s negligent conduct (Mustapha, at paras. 14-16; Livent, at para. 79). Remoteness is distinct from the reasonable foreseeability analysis within duty of care because it focuses on the actual injury suffered by the plaintiff, whereas the duty of care analysis focuses on the type of injury (Livent, at para. 78; Klar and Jefferies, at p. 565).
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