Just remember oneoff, you asked for it:
"First, the basic test for determining causation remains the 'but for' test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that 'but for' the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statute.
This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati, at para. 14, per Major J., '[t]he general, but not conclusive, test for causation is the 'but for' test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant.' Similarly, as I noted in Blackwater v. Plint, at para. 78, '[t]he rules of causation consider generally whether 'but for' the defendant's acts, the plaintiff's damages would have been incurred on a balance of probabilities.'
The 'but for' test recognizes that compensation for negligent conduct should only be made 'where a substantial connection between the injury and defendant's conduct' is present. It ensures that a defendant will not be held liable for the plaintiff's injuries where they 'may very well be due to factors unconnected to the defendant and not the fault of anyone': Snell v. Farrell, at p. 327, per Sopinka J.
However, in special circumstances, the law has recognized exceptions to the basic 'but for' test, and applied a 'material contribution' test. Broadly speaking, the cases in which the 'material contribution' test is properly applied involve two requirements.
First, it must be impossible for the plaintiff to prove that the defendant's negligence caused the plaintiff's injury using the 'but for' test. The impossibility must be due to factors that are outside of the plaintiff's control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff's injury must fall within the ambit of the risk created by the defendant's breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the 'but for' test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a 'but for' approach.
These two requirements are helpful in defining the situations in which an exception to the 'but for' approach ought to be permitted. Without dealing exhaustively with the jurisprudence, a few examples may assist in demonstrating the twin principles just asserted.
One situation requiring an exception to the 'but for' test is the situation where it is impossible to say which of two tortious sources caused the injury, as where two shots are carelessly fired at the victim, but it is impossible to say which shot injured him: Cook v. Lewis, [1951] S.C.R. 830. Provided that it is established that each of the defendants carelessly or negligently created an unreasonable risk of that type of injury that the plaintiff in fact suffered (i.e. carelessly or negligently fired a shot that could have caused the injury), a material contribution test may be appropriately applied.
A second situation requiring an exception to the 'but for' test may be where it is impossible to prove what a particular person in the causal chain would have done had the defendant not committed a negligent act or omission, thus breaking the 'but for' chain of causation. For example, although there was no need to rely on the 'material contribution' test in Walker Estate v. York Finch Hospital, this Court indicated that it could be used where it was impossible to prove that the donor whose tainted blood infected the plaintiff would not have given blood if the defendant had properly warned him against donating blood. Once again, the impossibility of establishing causation and the element of injury-related risk created by the defendant are central."
And if you don't believe me, ask the Chief Justice of Canada. She wrote that in 2007.
"First, the basic test for determining causation remains the 'but for' test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that 'but for' the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statute.
This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati, at para. 14, per Major J., '[t]he general, but not conclusive, test for causation is the 'but for' test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant.' Similarly, as I noted in Blackwater v. Plint, at para. 78, '[t]he rules of causation consider generally whether 'but for' the defendant's acts, the plaintiff's damages would have been incurred on a balance of probabilities.'
The 'but for' test recognizes that compensation for negligent conduct should only be made 'where a substantial connection between the injury and defendant's conduct' is present. It ensures that a defendant will not be held liable for the plaintiff's injuries where they 'may very well be due to factors unconnected to the defendant and not the fault of anyone': Snell v. Farrell, at p. 327, per Sopinka J.
However, in special circumstances, the law has recognized exceptions to the basic 'but for' test, and applied a 'material contribution' test. Broadly speaking, the cases in which the 'material contribution' test is properly applied involve two requirements.
First, it must be impossible for the plaintiff to prove that the defendant's negligence caused the plaintiff's injury using the 'but for' test. The impossibility must be due to factors that are outside of the plaintiff's control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff's injury must fall within the ambit of the risk created by the defendant's breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the 'but for' test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a 'but for' approach.
These two requirements are helpful in defining the situations in which an exception to the 'but for' approach ought to be permitted. Without dealing exhaustively with the jurisprudence, a few examples may assist in demonstrating the twin principles just asserted.
One situation requiring an exception to the 'but for' test is the situation where it is impossible to say which of two tortious sources caused the injury, as where two shots are carelessly fired at the victim, but it is impossible to say which shot injured him: Cook v. Lewis, [1951] S.C.R. 830. Provided that it is established that each of the defendants carelessly or negligently created an unreasonable risk of that type of injury that the plaintiff in fact suffered (i.e. carelessly or negligently fired a shot that could have caused the injury), a material contribution test may be appropriately applied.
A second situation requiring an exception to the 'but for' test may be where it is impossible to prove what a particular person in the causal chain would have done had the defendant not committed a negligent act or omission, thus breaking the 'but for' chain of causation. For example, although there was no need to rely on the 'material contribution' test in Walker Estate v. York Finch Hospital, this Court indicated that it could be used where it was impossible to prove that the donor whose tainted blood infected the plaintiff would not have given blood if the defendant had properly warned him against donating blood. Once again, the impossibility of establishing causation and the element of injury-related risk created by the defendant are central."
And if you don't believe me, ask the Chief Justice of Canada. She wrote that in 2007.
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