Date: Tue, 27 May 2008 14:53

From: Jason Neyers

Subject: The refreshing SCC

Lewis:

Why does reasonably foreseeable need a qualifier, reasonably already qualifies foreseeable which makes it more than possible. It can't be "more probable than not" since that is a higher than the contract standard which is said to be higher than the tort one (Heron II). I doubt any formulation will convey the idea better. A mathematical formulation would be of little help.

I have always thought that the right way to think about it was to ask what are the 4 or 5 reasons why someone would say what you did was negligent. If what happened was 1 of those four or five things then it is not too remote. I think that explains Mustapha.

Cheers,

Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

Lewis KLAR wrote:

The result in Mustapha was not surprising; the brevity was admirable.

But, I agree with Vaughan that you can only condense so much. My big concern is this. The Court dismissed the distinction between reasonably foreseeable as "probable" and reasonably foreseeable as "possible" since these terms are "misleading". It then concluded that in order to be recoverable, mental illness must be reasonably foreseeable to a person of ordinary fortitude. But reasonably foreseeable as probable or reasonably foreseeable as possible? It must be a "real risk" and not "far-fetched". How is that determined?

In short, you cannot avoid the issue of what test constitutes the standard of reasonable foresight. The evidence failed to establish that it was reasonably foreseeable that a person of ordinary fortitude would have suffered Mr. Mustapha's "highly unusual" reaction. How high is high? What if the evidence established that some people, say 10% of the population, would have become as severely upset as Mustapha. Would that have been enough?

I do not know what to make of this judgment.

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