Federal Court - Christian Aboriginal Infrastructure Developments ...

Page: 280
[1063] In Athey at para. 14, the Court held that “[t]he general, but not conclusive, test for causation
is the "but for" test, which requires the plaintiff to show that the injury would not have occurred but
for the negligence of the defendant…”
[1064] While it is necessary to apply the “but for” test on the balance of probabilities, it is not
necessary to prove that the Defendant was the only cause of the harm; see Athey, at paras. 17-19.
2010 FC 495 (CanLII)
[1065] The harm suffered by the LPL was the expectation losses resulting from the closure of the
mill. On the balance of probabilities and having regard to the totality of the evidence, I find that if
the Defendant had informed LPL that they had specific concerns with the inventory contained
within the Final Sterling Wood Report, the joint venture would not have proceeded.
[1066] I find on the balance of probabilities that “but for” the Defendant’s negligent
misrepresentation, the Plaintiffs would not have built the mill, the mill would not have closed and
the Plaintiffs would not have suffered the expectation losses.
(iii)
Contributory Negligence
[1067] The Defendant relies upon the Contributory Negligence Act, to argue that the liability for
damage to the Plaintiffs should be apportioned between the Defendant and the Plaintiffs.