Date: David Cheifetz

From: Fri, 23 May 2008 14:09

Subject: The refreshing SCC

Ottawa, May, 2009, SCC releases the judgment in Smith v Jones.

The majority writes, in part: Nothing in the reasons of this Court in Mustapha that could be read as a departure from the approach announced in several recent decisions of the Supreme Court of Canada could possibly create any uncertainty in the law.

(I'm not almost quoting anything the SCC has written)

-----Original Message-----
From: Vaughan Black 
Sent: May 23, 2008 8:46 AM
Subject: the refreshing SCC

I agree with Harold Luntz that there is something to be said for the SCC's brevity in Mustapha, and in several other of their recent decisions in the private law area. But I think they may be carrying it a bit too far. There's only so much that you can condense before some inevitable distortion sets in.

Consider the requirement of "recognized psychiatric illness". Before Mustapha, I would have thought that one of the requirements for stand-alone psychiatric injury in Canadian law was that the plaintiff's injury had to be a recognized psychiatric illness. It wasn't sufficient for a plaintiff to say "I have the blues"; rather, one required a psychiatrist to label the injury as something found in DSM-IV. The SCC in Mustapha says nothing about this; it only says that, to amount to an injury in law, psychiatric injury must be "serious and prolonged" as opposed to "minor and transient". What is the status of the "recognized psychiatric illness" requirement in Canadian law post-Mustapha? Would it have killed the SCC to have lengthened their judgment by adding a sentence or two about the status of the "recognized psychiatric injury" requirement.

This isn't the only instance of new uncertainties raised by the SCC's efforts in Mustapha (and elsewhere) to write judgments that read like headnotes.

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