Tales of Sound and Fury: Factual Causation in Tort after Resurfice

Abstract

In Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, 2007 SCC 7, the Supreme Court of Canada created a new causation doctrine – a new test for causation – in Canadian negligence law. The new test is available to plaintiffs only in exceptional cases. Negligence and the possibility of specific factual causation may be sufficient to satisfy the causation requirements of a cause of action in negligence. Proof of specific factual causation on the balance of probability is not required. The justification for the doctrine is fairness and justice. The doctrine does not produce a decision that the negligence did or did not cause the injury on the balance of probability. Where the requirements of the Resurfice doctrine are satisfied, the causation requirements of the cause of action are deemed to be satisfied despite the finding that factual causation was not established on the balance of probability. The Supreme Court called the doctrine a 'material contribution' testThis paper reviews aspects of the state of Canadian law on causation in negligence as of mid 2009. My paper titled 'The Resurfice Exception: Causation in Negligence Without Probability' (also on SSRN) is a more detailed analysis and is current though June 30, 2012.