Causation Test For Accident Benefits IS The "But For" Test: FSCO Director Decision

By Meredith Harper Sep 25, 2017

FSCO has released the appeal decision of State Farm and Sabadash (Appeal P16-00029) confirming the correct test to be applied for causation in accident benefits cases is the “but for” test. In short, Director’s Delegate David Evans found that the “but for” test is “paramount” in determining causation in accident benefits cases.

Director’s Delegate Evans echoed Arbitrator John Wilson’s findings in Agyapong v. Jevco, where it was found that the claimant’s injuries and impairments were not caused by the accident.  Arbitrator Wilson applied both the “but for” test and the “material contribution test” in determining causation. He found that the claimant failed to meet both tests. In Agyapong v. Jevco, Arbitrator Wilson also added some obiter comments stating that the “but for” test was the correct test to be applied in accident benefits cases.

The decision of State Farm and Sabadash provides an exhaustive history and analysis of the seminal case law regarding causation in Canada:

In Athey v. Leonati the Supreme Court of Canada summarizes the “but for” test as requiring the plaintiff to show that his or her injury would not have occurred but for the negligence of the defendant. Director’s Delegate Evans discussed the Supreme Court of Canada’s clarification of Athey in Resurfice, where it  stated that causation could be determined, based on the “material contribution test” where it is impossible to provide the cause of the plaintiff’s injuries using the “but for” test. The claimant must still pass the “but for” test prior to relying on the “material contribution to risk.”

In Clements v. Clements, the Supreme Court found that the material contribution test could be applied in cases where it is impossible for the plaintiff to apply the “but for” test. The example was provided where there were numerous tortfeasors but there are limitations of scientific reconstruction evidence in order to prove a definitive amount of negligence against one defendant, in particular:

“What then are the cases referring to when they say that it must be “impossible” to prove “but for” causation as a precondition to a material contribution to risk approach?  The answer emerges from the facts of the cases that have adopted such an approach.  Typically, there are a number of tortfeasors.  All are at fault, and one or more has in fact caused the plaintiff’s injury.  The plaintiff would not have been injured “but for” their negligence, viewed globally.  However, because each can point the finger at the other, it is impossible for the plaintiff to show on a balance of probabilities that any one of them in fact caused her injury.”

Thus, the plaintiff has the onus to prove that “but for” the defendant’s negligence, globally, she would not have suffered damages.

Particularly in Athey v. Leonati, causation was determined using the “but for” test where the plaintiff had a pre-existing back condition and suffered a disc herniation after two accidents. The defendants from the plaintiff’s accidents were found to be 25% liable for the plaintiff’s damages, where the trial judge found that the accidents were not the sole cause of the disc herniation but that the plaintiff was able to prove that the accident played “some causative role” in his damages. It is important to note, however, that the motor vehicle accident defendants did not seek to apportion liability between them, and defended the action on causation, only. In providing clarification regarding the application of the “but for” test, the Supreme Court of Canada gave the following examples:

“If the disc herniation would likely have occurred at the same time, without the injuries sustained in the accident, then causation is not proven.

If the accidents alone could have been a sufficient cause, and the pre-existing back condition alone could have been a sufficient cause, then it is unclear which was the cause-in-fact of the disc herniation.  The trial judge must determine, on a balance of probabilities, whether the defendant’s negligence materially contributed to the injury.”

The material contribution test is only applicable in the rare circumstances where an accident, alone, could have been a sufficient cause, and a pre-existing condition, alone, could have been a sufficient case. Thus, Director’s Delegate Evans found that a trier of fact could not apply the “material contribution test” and ignore the “but for” test. However, the cause to meet the “but for” test need not be the major cause.

The de minimis test respecting material contribution is only to be applied after the “but for” test has been answered. In the case of Athey v. Leonati, the trial judge’s finding that the motor vehicle accidents contributed to the plaintiff’s injuries and impairments by 25%, thus 25% was found to be more than a de minimis contribution to the plaintiff’s condition.

This may not be the last word on causation in accident benefits cases, however, where the claimant in Agyapong v. Jevco filed for Judicial Review in January 2017.

If you have any questions about this blog or a similar file, please contact the author, Meredith Harper.