Through the Looking-Glass, Darkly: Resurfice Corp. v. Hanke

Vaughan Black

Abstract


The Supreme Court of Canada's brief reasons in Resurfice Corp. v. Hanke will likely have effects disproportionate to their length. Hanke purports to mark a defendant-favouring turn in civil liability. Hanke asserts that the but-for test is the test for factual causation in almost all accidentally-caused injuries. This aids defendants because it eliminates from ordinary use what some lawyers and judges have asserted is a more easily satisfied alternative to the but-for test, the material contribution test. If judges pay attention to the advertised goal of Hanke, there will be cases where factual causation is not established under the but-for test, where it likely would have been under material contribution.

Causation is an area that has been characterized by uncertainty for at least five decades. Hanke attempts to reduce that. However, given Hanke's content, we believe that this attempt has mostly failed. The clarity or certainty it adds to the murky case law is minimal. It is doubtful that Hanke's laudable objective of rendering use of the material contribution test an exceptional event will come to pass. In both respects, Hanke is a missed opportunity.


This paper was co-authored with David Cheifetz, Pacific Law Group (dcheifetz@pacificlaw.ca).


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