1. Clements v. Clements (2012) SCC 32 (CanLII)
Clements is the current authority on causation in Canadian personal injury cases. It indicates that the “but for” test is the appropriate test to determine causation. Clement’s effectively limits the use of “material contribution” test to cases with multiple negligent tortfeasors where the “but for” test is insufficient to determine which tortfeasor caused the damages.
Clements is a case involving a motorcycle accident whereby the defendant’s motorcycle crashed, seriously injuring his plaintiff passenger. A number of factors contributed to the accident. Most of the factors stemmed from the defendants negligence. Namely, the defendant was driving a motorcycle in wet weather and approximately 20km/h over the speed limit. The motorcycle was overloaded by approximately 100lbs. One factor was not related to the defendant’s negligence; a nail punctured rear tire of motorcycle. When the defendant accelerated the nail fell out, the rear tired deflated and the defendant lost control of the motorcycle.
The defendant’s negligence in speeding and in operating an overloaded motorcycle was not in dispute. The defendants took the position that it was the nail and not the other factors which caused the accident.
ii. Trial level – (2009) BCSC 112 (CanLII).
At the trial level the judge found that the plaintiff “through no fault of her own is unable to prove that ‘but for’ the defendant’s breaches, she would not have been injured”. The trial judge found that the plaintiff’s inability to prove causation using the “but for” test was to the limitations of the scientific reconstruction evidence.
The trial judge found that since it was impossible to determine the amount each factor contributed to the injury, the but for test should be replaced with the “material contribution” test. The defendant was found liable on the basis of the “material contribution” test. The defendant appealed.
- iii. Court of Appeal – (2010) BCCA 581, 12 B.C.L.R. (5th) 310.
On appeal the court set aside the judgment. The court found that the “but for” test was the appropriate test and set aside the judgment. The plaintiff appealed the decision to the Supreme Court.
- iv. Supreme Court (2012) SCC 32 (CanLII)
The Supreme Court clarified that the “material contribution” test will only apply in cases of multiple defendants where the plaintiff has proven that “but for” the negligence of one or more of said defendants, the damages would not have occurred.
- a. The current test for causation
McLachlin J. speaking for the majority, described the “but for” test as the ordinarily test for establishing causation. The Chief Justice reiterated that the plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred.
The “but for” test must be applied in a robust common sense fashion with no need for scientific evidence of the precise contribution of the defendant’s negligence to the injury. At paragraph 15, McLachlin recapped the law of causation as follows:
the basic rule of recovery for negligence is that the plaintiff must establish on a balance of probabilities that the defendant caused the plaintiff’s injury on the “but for” test. This is a factual determination. Exceptionally, however, courts have accepted that a plaintiff may be able to recovery on the basis of “material contribution to risk of injury”, without showing factual “but for” causation.
- b. The Material Contribution test
Justice McLachlin held that the correct application of the material contribution test requires the plaintiff to show that the defendant’s conduct materially contributed to the plaintiff’s risk of injury. In other words, it is not the injury itself that requires examination but the circumstances surrounding the increase in risk of injury.
- c. Review of the Canadian jurisprudence
In determining whether the material contribution test was appropriate in Clements, McLachlin J. reviewed the Supreme Court jurisdiction on the issue of material contribution. Of relevance is McLachlin J’s interpretation of Athey v. Leonati (1996) 3 S.C.R. 458 [Athey]. At paragraph 22 MacLachlin J. described Athey as follows:
The plaintiff who suffered from pre-existing back problems, suffered a herniated disc after two motor vehicle accidents. He sued the drivers of the motor vehicles in negligence for his injury. The trial judge held that although the accidents were “not the sole cause” of the disc herniation, they played “some causative role” (para. 8). She accordingly found the defendants liable for 25 percent of the plaintiff’s loss. In the Court of Appeal, the plaintiff sought to uphold the result on the basis of material contribution, but that court declined to consider the issue as it had not been raised at trial.
[The Supreme Court], per Major J., discussed the limitations of the “but for” test and the propriety of exceptionally using a material contribution test. Major J. emphasized that a robust common sense approach to the “but for” test permits an inference of “but for” causation from evidence that the defendant’s conduct was a significant factor in the injury, and concluded that “[t]he plaintiff must prove causation by meeting the ‘but for’ or material contribution test” (para. 41). Major J. concluded that the 25 percent contribution found by the trial judge was a “material contribution” sufficient to meet the “but for” test. The term “material contribution”, read in context, does not detract from the fact that the Court in the end applied a robust, common sense application of the “but for” test, in accordance with Snell.
At paragraph 28, McLachlin J. summarized the Canadian Supreme Court jurisprudence on material contribution as follows:
First, while accepting that it might be appropriate in “special circumstances”, the Court has never in fact applied a material contribution to risk test. Cook was analyzed on a reverse onus basis. Snell, Athey, Walker Estate and Resurfice were all resolved on a robust and common sense application of the “but for” test of causation. Nevertheless, the Court has acknowledged the difficulties of proof that multi-tortefeasor cases may pose – difficulties which in some cases may justify relaxing the requirement of “but for” causation and finding liability on a material contribution to risk approach.
- d. Review of the United Kingdom Jurisprudence
At paragraphs 30-32, the court reviewed the leading UK jurisdiction on causation and the material contribution test. McLachlin J. paid considerable consideration to the 2012 United Kingdom High Court decisions of Fairchild v. Glenhaven Funeral Services Ltd., (2002) UKHL 22 [Fairhcild], Baker v. Corus UK Ltd., (2006) UKHL 20 [Baker] and Sienkiewicz v. Greif (UK) Ltd., (2011) UKSC 10 [Sienkiewicz].
In Fairchild and Baker, the plaintiffs developed disease related to toxic workforce agents with multiple negligent tortfeasors exposing the plaintiff’s to asbestos. To determine causation, the courts applied the material contribution test as it was impossible to determine which of the defendants’ negligence exposed the plaintiff’s to the risks. In that situation, fairness and policy supported a relaxation of the “but for” test.
The Sienkiewicz decision is similar to Fairchild and Baker in that multiple sources of toxic agents which contributed to the plaintiff’s damages. However, Sienkiewicz pertained to the negligence of a single tortfeasor. The court in Sienkiewicz relied on the Fairchild and Baker precedents to apply the material contribution test. At paragraph 42 McLachlin J. differentiated the Sienkiewicz decision from Clements finding as follows:
The United Kingdom Supreme Court took the view that it was bound by precedent to apply a material contribution to risk approach in all mesothelioma cases. Several members of the court in Sienkiewicz noted the difficulty with such a result. Lady Hale observed (at para. 167) that she found it hard to believe that a defendant .whose wrongful exposure might or might not have led to the disease would be liable in full for the consequences even if it was more likely than not that some other cause was to blame (let alone that it was not more likely than not that he was to blame).. In my view, nothing compels a similar result in Canada, and thus far, although Sopinka J.’s remarks in Snell (quoted above at para. 20) do not preclude it, courts in Canada have not applied a material contribution to risk test in a case with a single tortfeasor.
In Nayar, the court followed the precedent established in Guiliani v. Saville to find that a plaintiff who put his hands on the hood of the defendant’s vehicle was not contributory negligent when the defendant accelerated and hit the plaintiff.
The facts as accepted by the court were as follows. The plaintiff was a gas station attendant who followed the defendant as she was slowly driving away without paying for gas. The plaintiff was under the impression that the defendant simply forgot to pay. The plaintiff put himself in front of the defendant’s vehicle with his palms out. The defendant began revving the engine of her vehicle and inching it towards the plaintiff. The plaintiff then proceeded to place his hands on the hood of the defendant’s vehicle. The defendant accelerated, hitting the plaintiff in knee.
The court acknowledged that the plaintiff was reckless in placing himself in front of the defendant’s vehicle and putting his hands on the hood. However, the court found that the defendant was entirely to blame for the incident
At paragraph 33 the court found that:
[The defendant] was there to be seen, as was the plaintiff. It was not reasonably foreseeable that [the defendant] would drive into [the plaintiff].
It follows that the plaintiff may not be found contributory negligent applies even if the plaintiff puts his hands on the defendant’s vehicle and even if the defendant acts in a matter that indicates that she will accelerate.
In Guiliani the British Columbia Court of Appeal found that the plaintiff standing in the middle of the road, in the path of the defendant’s approaching vehicle was not contributory negligent when the defendant’s vehicle collided with the plaintiff.
The plaintiff Guiliani and his friends were driving past the defendant when the defendant “gave them the finger”. An invitation to fight ensued and the defendant escaped by getting into his vehicle and speeding off. The plaintiff proceeded to stand in the roadway waiting for the defendant to return. The court accepted that the plaintiff was standing in the roadway in order to identify the defendant when he returns and to take down the defendant’s license plate number.
When the defendant finally returned, he was approaching the plaintiff at an accelerated speed. The plaintiff continued to stand in the roadway despite having ample opportunity to get out of the way of the defendant’s vehicle. The trial judge accepted the evidence that the plaintiff did not move until the car was virtually upon him and it was too late to get out of the way.
The trial judge found that the plaintiff was 30% responsible for his injuries. The court of appeal reversed the finding of contributory negligence. At paragraph 10, it held that the trial judge reached her conclusion:
“without regard for the flagrant and almost unforeseeable conduct of the defendants and without regard for the fact that the defendant had ample room to steer clear of the plaintiff.”
The court rejected the submission that having regard to the previous altercation between the parties the plaintiff should have known that standing in the path of the defendant’s vehicle was particularly dangerous.
At paragraph 11, the court stated that:
the plaintiff could see the defendant coming but it was not reasonably foreseeable that the defendant, who could see him equally well, would continue to drive towards him at an accelerated speed.
Carr is an example of a pedestrian-motor vehicle collision where the defendant driver hit the plaintiff pedestrian in attempting to escape from a dangerous situation created by the pedestrian. Carr stands for the proposition that even in extreme circumstances the defendant driver owes the plaintiff pedestrian a duty to avoid a collision.
In Carr, the plaintiff was operating his vehicle directly in front of the defendant’s vehicle. Suddenly, the plaintiff stopped his vehicle and got out. The plaintiff approached the defendant’s vehicle with a six-inch combat knife. The plaintiff punctured the front left wheel of the defendant’s vehicle and proceeded (knife-in-hand) towards the defendant’s driver door. The defendant escaped the situation by sharply accelerating around the plaintiff’s parked vehicle and away from the plaintiff. In the process of driving around the plaintiff’s vehicle, the defendant’s vehicle made contact with the plaintiff, causing a severe tibia-fibula fracture.
At paragraph 22, the court found that the defendant had not discharged the onus to prove that the plaintiff’s damages were sustained without any negligence on the defendant’s part.
The court accepted that the plaintiff’s conduct put the defendant in a justifiably perceived situation of emergency. However, the court concluded that the defendant did not need to accelerate sharply from a stopped position and a lower rate of speed would have permitted the plaintiff to avoid contact.
The court found the defendant negligent and the plaintiff contributory negligent. In accordance with Section 4 of the Negligence Act the court apportioned the liability 50/50.
 In court, the plaintiff claimed that he had been rear-ended by the defendant. However, the judge did not accept this evidence.
In April, the Court granted the Plaintiff leave to examine a Defendant regarding the findings from a Defendant’s expert report. The report was conducted after the EDs for both parties have been completed.
The Plaintiff took the position that new facts may have come to light as a result of the report and that the Plaintiff was entitled to examine the Defendant with respect to these facts. Pennell J. agreed with the Plaintiff. He found that:
The court has jurisdiction to order further discovery where the examination already had has [sic] failed to give the party seeking it the discovery to which he is entitled. To the making of that appraisal one can do little more than offer suggestion of example. Justification for such an order includes the following: “[Where] special grounds are shown”: Martin v. Deutch et al.,  O.W.N. 774,  4 D.L.R. 798; “[Where] it is in the interest of justice”: Standard Trading Co. v. Seybold (1904), 7 O.L.R. 39; “Where justice so requires”: Hellofs v. Royal Bank of Canada,  1 W.W.R. 6.
Pennell J. did not specify whether a second ED was granted in accordance with special grounds or in the interests of justice.
Chorney is an example where the court granted the moving party a second Examination for Discovery (ED). Chorney was a Family Law Reform Act action by the widow of a man who died in an MVA. The Defendant conducted an ED of the widow. Following the ED, the Defendant received the results of the deceased Plaintiff’s autopsy report. The report indicated that the deceased had alcohol in his blood at the time of the MVA. The plaintiff knew of the autopsy result at the time of the first ED. The Defendants applied to re-examine the plaintiff but the application was refused. The defendants appealed.
Callaghan J. allowed the appeal. He found that the information was significant to the issues at trial and that the Defendants were entitled to a second ED. He offered no further elaboration. Presumably, the evidence of alcohol in the blood of the deceased created a substantial new issue which the Defendant was entitled to address in an ED.