SCC to Reconsider the "Material Contribution" Test for Causation

The Supreme Court of Canada has granted leave in an appeal that may significantly limit liability in tort.  The case, Clements v. Clements, will require the Court to reconsider the "material contribution" test for causation, and in particular, whether it should be restricted to two narrow situations.

Decisions Below

In the judgment below, Clements (Litigation Guardian of) v. Clements, the British Columbia Court of Appeal found that the driver of a motorcycle was not liable to his passenger for injuries sustained as the result of an accident.  The driver was travelling at excessive speeds, and had overloaded the motorcycle.  Nevertheless, the triggering event for the accident was the puncturing of the motorcycle's rear tire by a sharp object.

The trial judge found that, even though the driver's negligence was not the "but for" cause of the accident, the driver should be held liable since his negligence made a material contribution to it.  However, the B.C. Court of Appeal ruled that this analysis was incorrect.  According to Frankel J.A., the "material contribution" test for causation, which is more lenient than the "but for" test for causation, is only possible in two cases.  The first is "circular" causation, where it is impossible to prove which of two or more possible tortious causes caused the plaintiff's harm.  The second is "dependency" causation, where it is impossible to prove whether a third party would have acted in the face of the defendant's negligence in a way that facilitated harm to the plaintiff.  Frankel J.A. found that neither of these situations was present on the facts of Clements.

Potential Significance

It will be interesting to see whether the Supreme Court of Canada accepts Frankel J.A.'s analysis.  In Resurfice Corp. v. Hanke, Supreme Court referred to circular and dependency causation as two examples of situations where the material contribution test may be appropriate.  However, the Court's reasons in Resurfice do not require that the test be limited to those situations.  If the Clements Court decides to accept this restriction, it could significantly narrow the potential for recovery in a wide range of torts.  This would be consistent with the Supreme Court's recent jurisprudence, where the trend has to been to limit the scope of tortious liability.

The upcoming Clements decision will be of great interest to companies and individuals who face a heightened exposure to tort claims.  In particular, it will have relevance for physicians and other professionals, and industries that are frequently the target of tort-based class actions.

Case Information

Clements v. Clements, 2011 CanLII 36004 (SCC)

SCC Docket Number: 34100

Date Leave Granted: June 16, 2011

accident but for causation circular causation class actions injuries material contribution motorcycle negligence professionals Supreme Court of Canada third party tort tortious liability



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