Causation: A Case Study with Richard Halpern

Gluckstein Lawyers' 4th Annual Risky Business Conference: Case Updates and Practical Tips took place using a hybrid model, on November 29, 2022, from 9:00 AM to 4:00 PM. Our Risky Business conference aims to educate lawyers, law clerks, health care practitioners, and others who wish to understand the nuanced aspects of medical negligence claims. The conference provides tips and guidance on meeting the challenges of medical malpractice litigation, ensuring clients get all they deserve.

Causation: A Case Study, presented by Richard Halpern, explores how the concept of causation is poorly understood. Causation is a factual question and asks whether there is a link between a “wrongful” act and the “harm” suffered by the plaintiff. In tort law, the test for establishing this causal link is called the “but-for” test. “But-for” is just the label, it does not tell us how the test is to be applied. "But-for” is based on a hypothetical world that asks what the outcome would have been had the wrongful act not occurred. This imagined world invokes the “Counterfactual."

In some circumstances, the “wrongful” act may not be the only event needed to bring about the harm. A properly framed counterfactual question must accommodate factual scenarios where more than just the wrongful act was needed to cause the harm. Multiple cause cases (whether innocent or guilty) are challenging cases that expose possible shortcomings to the but-for test. Richard's position is that the Supreme Court of Canada’s decision in Clements v. Clements, the leading case, is seriously flawed.