Hanke v. Resurfice Corp. et al., (2007) 404 A.R. 333 (SCC)

• Judge: McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 12, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2007), 404 A.R. 333 (SCC);2007 SCC 7;69 Alta LR (4th) 1;45 CCLT (3d) 1;[2007] SCJ No 7 (QL);JE 2007-333;394 WAC 333;EYB 2007-113553;[2007] 1 SCR 333;[2007] CarswellAlta 130;278 DLR (4th) 643;[2007] ACS no 7;[2007] RRA 1;153 ACWS (3d) 1012;357 NR 175;[2007] 4 WWR 1;404 AR 333

Hanke v. Resurfice Corp. (2007), 404 A.R. 333 (SCC);

      394 W.A.C. 333

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2007] A.R. TBEd. FE.143

Resurfice Corp. (appellant) v. Ralph Robert Hanke (respondent)

LeClair Equipment Ltd. (appellant) v. Ralph Robert Hanke (respondent)

(31271; 2007 SCC 7; 2007 CSC 7)

Indexed As: Hanke v. Resurfice Corp. et al.

Supreme Court of Canada

McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.

February 8, 2007.

Summary:

The plaintiff, an employee of the City of Edmonton, was injured when a gasoline explosion took place when he was engaged in operating, or preparing to operate, an ice resurfacing machine at a city arena. The plaintiff commenced a products liability claim against the manufacturer of the machine (Resurfice Corp.) and the distributor (LeClair Equipment Ltd.).

The Alberta Court of Queen's Bench, in a decision reported 333 A.R. 371, dismissed the action where the event that occurred in this case was not reasonably foreseeable by the defendants. The plaintiff appealed.

The Alberta Court of Appeal, in a decision reported 380 A.R. 216; 363 W.A.C. 216, allowed the appeal and ordered a new trial. The court stated that a proper causation analysis might have produced a different result. The manufacturer of the machine and the distributor appealed.

The Supreme Court of Canada allowed the appeal, set aside the order of the Court of Appeal and restored the trial judgment.

Torts - Topic 54

Negligence - Causation - Test for (incl. ''but for'' test and ''material contribution'' test) - The Supreme Court of Canada reviewed the general principles which emerged from the case law respecting the proper test for causation in cases of negligence - The court stated that "...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" - See paragraph 21 - The court stated further, however, that "... 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"- See paragraph 24 - Those requirements were: (1) that it had to be, for reasons beyond the plaintiff's control, impossible for the plaintiff to prove that the defendant's negligence caused the plaintiff's injury using the 'but for' test; and (2) it had to 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 these exceptional cases, where these two requirements were satisfied, liability could be imposed, even though the "but for" test was not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a "but for" approach - See paragraph 25 - The court stated the one situation requiring an exception to the "but for" test was the situation where it was impossible to say which of two tortious sources caused the injury as where two shots were carelessly fired at the victim, but it was impossible to say which shot injured the victim - See paragraph 27 - Another situation requiring an exception to the "but for" test might be where it was 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 - See paragraph 28.

Torts - Topic 54

Negligence - Causation - Test for (incl. ''but for'' test and ''material contribution'' test) - [See - Torts - Topic 4311 ].

Torts - Topic 4311

Suppliers of goods - Negligence - Manufacturers or distributors - The plaintiff, an employee of the City of Edmonton, was injured when a gasoline explosion took place when he was engaged in operating, or preparing to operate, an ice resurfacing machine at a city arena - The plaintiff commenced a products liability claim against the manufacturer and distributor of the machine (the defendants) - The trial judge, applying the "but for" test for causation, found that the explosion was caused by operator error in placing a hose in a gasoline tank and turning on the hot water causing an explosive vapour to ignite - The court dismissed the action where the danger that an operator would put hot water into the gasoline tank was not reasonably foreseeable - The plaintiff appealed - The Alberta Court of Appeal allowed the appeal and ordered a new trial - The court held that the trial judge erred in applying the "but for" test in this case and in the overall analysis of the causation/ remoteness issue - The defendants appealed - The Supreme Court of Canada allowed the appeal and restored the trial decision - The court stated that the Court of Appeal erred in failing to recognize that the basic test for causation remained the "but for" test - It further erred in applying the material contribution test in circumstances where its use was neither necessary nor justified.

Torts - Topic 4334

Suppliers of goods - Negligence - Manufacturers - Causation - [See Torts - Topic 4311 ].

Torts - Topic 4465

Suppliers of goods - Defences - Improper use of machinery by buyer - [See Torts - Topic 4311 ].

Cases Noticed:

Jordan House Ltd. v. Menow, [1974] S.C.R. 239, refd to. [para. 6].

Stewart v. Pettie, [1995] 1 S.C.R. 131, refd to. [para. 6].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 9].

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 10].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 11].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 18].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 19].

Walker Estate et al. v. York Finch General Hospital et al., [2001] 1 S.C.R. 647; 268 N.R. 68; 145 O.A.C. 302; 2001 SCC 23, refd to. [para. 19].

Blackwater et al. v. Plint et al., [2005] 3 S.C.R. 3; 339 N.R. 355; 216 B.C.A.C. 24; 356 W.A.C. 24; 2005 SCC 58, refd to. [para. 19].

Cook v. Lewis, [1951] S.C.R. 830, refd to. [para. 27].

Authors and Works Noticed:

Klar, Lewis N., Downsizing Torts, in Mullany, Nicholas J., and Linden, Allen M., Torts Tomorrow: A Tribute to John Fleming (1998), p. 307 [para. 6].

Mullany, Nicholas J., and Linden, Allen M., Torts Tomorrow: A Tribute to John Fleming (1998), p. 307 [para. 6].

Counsel:

Daniel W. Hagg, Q.C., and Jeffrey R. Sermet, for the appellant Resurfice Corp;

David J. Cichy, Q.C., and E. Jane Sidnell, for the appellant LeClair Equipment Ltd;

Jonathan P. Rossall, Q.C., and David D. Risling, for the respondent.

Solicitors of Record:

Bryan & Company, Edmonton, Alberta, for the appellant Resurfice Corp.;

Miller Thomson, Calgary, Alberta, for the appellant LeClair Equipment Ltd.;

McLennan Ross, Edmonton, Alberta, for the respondent.

This appeal was heard on December 12, 2006, before McLachlin, C.J.C., Bastarache, Binnie,

LeBel, Deschamps, Fish, Abella, Charron and Rothstein, of the Supreme Court of Canada. The following decision was delivered by McLachlin, C.J.C., in both official languages, for the court, on February 8, 2007.