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Abstract

Causation is acknowledged as the single biggest hurdle to recovery for plaintiffs in toxic tort actions in Canada (and elsewhere). Scientific uncertainty involving questions of both generic and specific causation has frequently precluded recovery for plaintiffs even where defendants have negligently exposed them to toxic risk. Three types of uncertainty have been identified: plaintiff indeterminacy (where we know that the defendant has harmed some proportion of a particular population but no individual can prove causation); defendant indeterminacy (where we know that a group of defendants has harmed a particular plaintiff or plaintiffs but each can escape liability by pointing the finger at the other); and indeterminacy of harm (where plaintiffs have been exposed to a risk that may or may not materialize in the future). In Canada, there is no recovery for risk exposure, unless it produces a measurable psychiatric harm. The problem of plaintiff indeterminacy remains, with a resulting under-deterrence of toxic harms and under-compensation of injured plaintiffs. The Supreme Court of Canada has, however, solved the problem of defendant indeterminacy for Canadian plaintiffs. Taking inspiration from both United Kingdom and American theories of collective liability, the Court, in Clements v. Clements, adopted a uniquely Canadian test for material contribution to risk as a proxy for proof of causation. This article argues that the Clements test is a promising start for causation reform in Canada but does not go far enough towards incentivizing information disclosure and precaution in the manufacture and dissemination of chemical products and pollution.

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