The Supreme Court of Canada has provided some welcome guidance on the law of causation, with the release of its decision in Clements v. Clements, 2012 SCC 32.
As much as the Court insisted before that decision that there was only one test for factual causation, the cases actually articulated two tests: the “but for” test, and the “material contribution” test.
Proof that the Plaintiff’s damages would not have arisen “but for” the Defendant’s negligence has been the primary test for causation, but the Courts have continually stated that under certain circumstances, the Plaintiff can succeed by showing that the Plaintiff’s negligence “materially contributed” to the damages.
What that has meant, and when it applies has been the subject of some debate.
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The Alberta Court of Appeal has upheld Alberta’s Minor Injury Regulations, capping general damages in motor vehicle accident litigation at $4,000. The Court released its decision in Morrow v. Zhang, the litigation challenging Alberta’s Minor Injury Regulations, on June 12, 2009.
In the meantime, the ruling by the Nova Scotia Supreme Court in Hartling et al v. Nova Scotia is expected to be heard in the Nova Scotia Court of Appeal in October 2009.
An interesting take on Alberta’s decision can be found here.
This is a potentially troubling development for volunteer rescue operations, particularly where they operate in backcountry ski operations.
Hemeon v. District of West Hants, 2008 NSSC 234 examines the interplay between section 69.4 of Canada’s Bankruptcy and Insolvency Act, R.S.C. 1985, c. B-3 (the “BIA”), and section 28 of Nova Scotia’s Insurance Act, R.S.N.S. 1989, c. 231.
The BIA provides for an automatic stay of proceedings in all litigation against a person who makes an assignment in bankruptcy, but then permits that stay to be lifted if the applicant can demonstrate that it will be “materially prejudiced” by the stay, or that lifting the is “equitable on other grounds”.
The Insurance Act provides that if a person obtains judgment against another for which there is insurance, and execution against the judgment debtor is returned unsatisfied, then the judgment creditor can bring the same action against the insurer, and the insurer will be liable up to the face value of the policy.
Although the case is based on Nova Scotia legislation, most provincial insurance legislation contains provisions similar to those interpreted in this case.
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In Fleet v. Federated Life and Bellefontaine, 2008 NSSC 231 (CanLII), an insurance broker was found liable to re-imburse the insurer for payments made on a life insurance policy, where the broker inserted misleading answers about the insured’s health in an application for life insurance, and then forged the insured’s signature.
At trial, counsel for the plaintiff entered the broker’s entire transcript from the examination for discovery. The broker chose not to take the stand as a result, arguing that the plaintiff was bound by the evidence tendered, which denied that the broker forged the insured’s signature.
Justice G. Moir found that entering an adverse party’s discovery evidence does not make the adverse party a witness in the tendering party’s case, and therefore the tendering party is not bound by the adverse party’s discovery evidence.
His Lordship also found that the broker breached his contractual and fiduciary duties to the insurer, and was liable to reimburse the insurer for the amounts owed to the insured under the policy.
