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Torts - Negligence - Causation (2). Algra v. Comrie Estate
In Algra v. Comrie Estate (Ont CA, 2023) the Court of Appeal considered lawsuits emanating from a fatal boat accident. In these quotes the court considers aspects of negligence, here causation:(c) Material Contribution Test
[18] The Liability Appellants submit that the motion judge erred in law in not adopting the “material contribution to risk test” in his causation analysis. They argue that they should be able to recover on the basis of “material contribution to risk,” without showing factual “but for” causation. I would not give effect to this submission. The motion judge properly applied the “but for” test rather than the “material contribution to risk” test.
[19] Generally, the test for showing causation is the “but for” test, i.e., liability follows when the plaintiff establishes on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. This is a factual inquiry. In some cases, an injury may flow from several different negligent acts committed by different actors, each of which is a necessary or “but for” cause of the injury. In those cases, the defendants will be jointly and severally liable and the trier of fact will apportion liability according to the degree of fault of each defendant pursuant to contributory negligence legislation: Clements v. Clements, 2012 SCC 32, [2012] 2 S.C.R. 181, at paras. 8, 12.
[20] Despite the foregoing, in exceptional circumstances, where it is impossible to prove causation on the “but for” test, a plaintiff may be able to recover on the basis of a “material contribution to risk of injury,” without showing factual “but for” causation: Clements, at paras. 13, 37. This test can apply where there are multiple tortfeasors if the plaintiff can establish that but for their actions globally an injury would not have resulted, but they cannot show which of several negligent defendants actually caused the injury: Clements, at para. 46. Thus, the material contribution test is only appropriate where it is impossible for a plaintiff to prove which of several defendants caused the plaintiff’s injury using the “but for” test: Clements, at para. 40.
[21] The law in this regard was summarized by McLachlin C.J. at para. 46 of Clements:(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss “but for” the negligent act or acts 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.
(2) Exceptionally, a plaintiff may succeed by showing that the defendant’s conduct materially contributed to risk of the plaintiff’s injury, where (a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (b) the plaintiff, through no fault of her own, is unable 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 one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone. [22] Elimination of proof of causation as an element of negligence is a radical step that goes against the fundamental principle that a defendant in an action in negligence is a wrongdoer only in respect of the damage which he actually causes to the plaintiff. For that reason, “recourse to a material contribution to risk approach is necessarily rare, and justified only where it is required by fairness and conforms to the principles that ground recovery in tort”: Clements, at para. 16.
[23] In the case at bar, it was not impossible for the Liability Appellants to establish “but for” causation. They did so with respect to Comrie and Monteiro. The problem was that they failed to meet their onus of establishing the essential prerequisite for the adoption of the “material contribution to risk” test, i.e., the existence of multiple potentially contributing tortfeasors. In other words, the Liability Appellants failed to establish that they are in a correlative relationship of doer and sufferer of the same harm with the Government Respondents. Considerations of fairness were not engaged because there is nothing inherently unfair in finding that the actions of Comrie and Monteiro were the only causes of the accident and that the actions of the Government Respondents were not a cause. Thus, the “material contribution to risk” test was not in play and the motion judge made no error in utilizing the “but for” test. . Willick v. Willard
In Willick v. Willard (Ont CA, 2023) the Court of Appeal considered 'causation', here in a medical malpractice context:[43] The appellants argued causation before they argued whether the standards of care were breached and relied on this court’s decision in Sacks v. Ross, 2017 ONCA 773, 417 D.L.R. (4th) 387 as authority for doing so. They cite para. 47, where, writing for the court, I said:Regardless of whether the defendant's breach of the standard of care is an act or an omission, the trier of fact’s cognitive process in determining causation has three basic steps. The first is to determine what likely happened in actuality. The second is to consider what would likely have happened had the defendant not breached the standard of care. The third step is to allocate fault among the negligent defendants. [44] The appellants submit that the trial judge failed to clearly apply the requisite three-step causation analysis. With respect, that is not the correct reading of para. 47 of Sacks, which is not a prescription that mandates a particular analytical framework but a description of the reasoning process in an ordinary case. The trial judge did not err by engaging in a different process.
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