CONFUSION IN MATERIAL CONTRIBUTION

  • David Mangan
Keywords: tort, but for test, multiple causation, material contribution

Abstract

Clements v Clements continued a problematic line of cases for the Supreme Court of Canada. The Court missed an opportunity to provide enhanced guidance on this topic. Even if it was marking a distinct line of thought from that of the English courts, the Canadian Supreme Court avoided useful distinctions found in the English jurisprudence (a body of jurisprudence which is more extensive than that of Canada). Still, Clements was not devoid of a bold pronouncement. On this occasion the Court endorsed corrective justice as the theory underpinning the law of negligence. While a number of prominent academics have advocated for corrective justice, its adoption by the Supreme Court absent more elaborate discussion (notably when there are pointed criticisms of the theory) only perpetuates further confusion in the area of exceptions to the traditional approach to causation.

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Published
2014-04-01
Section
Legal Commentary