Hunting the Causative Snark: Materially Increasing Risk as Factual Causation

Abstract

The two papers set out Canadian law on the proof of factual causation in negligence as of early 2005. The first half of 'Causative Snark' examines the but-for test. The second half examines a material contribution to injury test which officially existed in Canadian jurisprudence, and was regularly used, as an alternative to the but-for test for proof of factual causation on the balance of probability between late 1996 and early 2007. The material contribution to injury test was supposedly restricted to instances where it was impossible to validly use the but-for test to prove or disprove factual causation on the balance of probability for reasons not related to the mere failure of a plaintiff to adduce evidence which could have been adduced. 'Materially Increasing Risk', written in late 2004, examines the possibility of that Canadian negligence law would adopt Fairchild v. Glenhaven Funeral Services Ltd., [2003] 1 A.C. 32, [2002] UKHL 22.These two papers, together with David Cheifetz 'Tales of Sound and Fury: Factual Causation in Tort after Resurfice' (also available on SSRN) provide a picture of the Canadian law as it was immediately before and after Resurfice Corp v. Hanke, 2007 SCC 7.