Jason and fellow ODGers:

 

This is indeed an important decision and one that will require some rewriting of textbooks, what to speak of law firm blogs, lawyers’ opinion letters, and claims adjusters’ policy manuals. However, I see it not as a seismic or watershed event but as the culmination of a renovation project that has proceeded in fits and starts over a long period. A similar case was made 33 years ago by Justice MacLachlan—a BC trial judge, as she then was—in Rahemtulla v Vanfed Credit Union (1984), 51 BCLR 200 (SC), [1996] BCJ No 696. A teller had been wrongly dismissed and accused by her employer of theft, resulting in severe emotional distress to the teller that manifested in such things as a refusal to eat or to go out. She succeeded in her claim, even though she hadn’t produced an expert or a label for her condition. Here’s paragraph 57:

 

Finally, it must be established that the conduct produced actual harm, a "visible and provable illness" [citation omitted]. I have earlier described the distress which the plaintiff suffered as a consequence of the defendant's accusations. Notwithstanding the absence of expert medical evidence, I am satisfied that the plaintiff suffered depression accompanied by symptoms of physical illness as a result of [her manager’s] accusations.

 

The case was not cited in Saadati v Moorhead, perhaps because the court didn’t want to muddy negligence waters with decisions based on intentional torts or perhaps because of the need to untether mental illness from physical illness, none having been proved in Saadati. But what the Court is now saying seems quite consistent with Rahemtulla and other cases that have since cited the above-noted paragraph with approval. Saadati takes things further, though, with Justice Brown now more explicitly and more elegantly warning that the law should not be required to follow “a sometimes meandering path as it is cleared by the cutting edge of au courant thinking in modern psychiatry — wherever it may lead, or from wherever it may retreat [and thus] “it is not only undesirable, but unnecessary to distort negligence law by applying the mechanism of a diagnostic threshold for proving mental injury.” (paras 33–34)

 

 

 

Dear Colleagues:

 

The Supreme Court of Canada has just released a ground-breaking decision that refuses to recognize the requirement of recognizable psychiatric illness as forming part of the Canadian law of negligence, see Saadati v. Moorhead, 2017 SCC 28: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16664/index.do. It also disparages the use of other policy-based factors in cases involving mental injury. After Saadati every Canadian casebook and textbook will need substantial revision.

 

The plaintiff was involved in a car accident that did not seem to cause any physical injuries but suffered “psychological injuries, including personality change and cognitive difficulties".  This  finding by the trial judge did not rest on expert testimony nor was it based on an identified medical cause, rather the trial judge based his finding upon the testimony of friends and family of the plaintiff.  The BCCA reversed holding that the plaintiff must prove that he suffered "a medically recognized psychiatric or psychological illness or condition" that was demonstrated by "expert medical opinion evidence".

 

The SCC unanimously held that the trial judgment should be restored since plaintiffs were not required to prove that their injuries were a recognisable psychiatric illness nor to adduce expert evidence.

 

Justice Brown’s judgment is far-reaching but here are a few excerpts to whet the appetite:

 

2 This Court has, however, never required claimants to show a recognizable psychiatric illness as

a precondition to recovery for mental injury. Nor, in my view, would it be desirable for it to do so

now. Just as recovery for physical injury is not, as a matter of law, conditioned upon a claimant

adducing expert diagnostic evidence in support, recovery for mental injury does not require proof of

a recognizable psychiatric illness. This and other mechanisms by which some courts have

historically sought to control recovery for mental injury are, in my respectful view, premised upon

dubious perceptions of psychiatry and of mental illness in general, which Canadian tort law should

repudiate. Further, the elements of the cause of action of negligence, together with the threshold

stated by this Court in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at

para. 9, for proving mental injury, furnish a sufficiently robust array of protections against unworthy

claims.

 

19 This Court has not, however, adopted either the primary/secondary victim distinction, or

McLoughlin v. O'Brian's disaggregated proximity analysis. Rather, in Mustapha, recoverability of

mental injury was viewed (at para. 3) as depending upon the claimant satisfying the criteria

applicable to any successful action in negligence … . Each of these elements can pose a significant hurdle:

not all claimants alleging mental injury will be

in a relationship of proximity with defendants necessary to ground a duty of care; not all conduct

resulting in mental harm will breach the standard of care; not all mental disturbances will amount to

true "damage" qualifiying as mental injury, which is "serious and prolonged" and rises above the

ordinary emotional disturbances that will occasionally afflict any member of civil society without

violating his or her right to be free of negligently caused mental injury (Mustapha, at para. 9); and

not all mental injury is caused, in fact or in law, by the defendant's negligent conduct.

 

23  … it is implicit in the Court's decision in Mustapha that Canadian

negligence law recognizes that a duty exists at common law to take reasonable care to avoid causing

foreseeable mental injury, and that this cause of action protects a right to be free from negligent

interference with one's mental health. That right is grounded in the simple truth that a person's

mental health -- like a person's physical integrity or property, injury to which is also compensable in

negligence law -- is an essential means by which that person chooses to live life and pursue goals

(A. Ripstein, Private Wrongs (2016), at pp. 87 and 252-53). And, where mental injury is negligently

inflicted, a person's autonomy to make those choices is undeniably impaired, sometimes to an even

greater degree than the impairment which follows a serious physical injury

 

31 Confining compensable mental injury to conditions that are identifiable with reference to these

diagnostic tools is, however, inherently suspect as a matter of legal methodology. While, for

treatment purposes, an accurate diagnosis is obviously important, a trier of fact adjudicating a claim

of mental injury is not concerned with diagnosis, but with symptoms and their effects (Mulheron, at

p. 88). Put simply, there is no necessary relationship between reasonably foreseeable mental injury

and a diagnostic classification scheme. … Downloading the task of assessing legally recoverable mental injury to the DSM

and ICD therefore imports an arbitrary control mechanism upon recovery for mental injury,

conditioning recovery not upon any legally principled basis directed to the alleged injury, but upon

conformity with a legally irrelevant classification scheme designed to facilitate identification of

particular conditions …

 

37 None of this is to suggest that mental injury is always as readily demonstrable as physical

injury. … Further, and as Mustapha makes

clear, mental injury is not proven by the existence of mere psychological upset. While, therefore,

tort law protects persons from negligent interference with their mental health, there is no legally

cognizable right to happiness. Claimants must, therefore, show much more -- that the disturbance

suffered by the claimant is "serious and prolonged and rise[s] above the ordinary annoyances,

anxieties and fears" that come with living in civil society (Mustapha, at para. 9).

 

Congratulations to the many ODGers whose work was cited.

 

Happy Reading,

 

 

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)