sample table Nov 22, 2018

Is There a Need to Review Your Reserves?[1]

Jacinthe Boudreau
STIEBER BERLACH LLP
October, 2018

Introduction

Since the decision of the Supreme Court in Mustapha in 2008, the law of “mental distress” has continued to evolve. As some of my colleagues addressed at the Stieber Berlach 2017 Insurance Law Update Seminar, the Supreme Court held in 2017, in Saadati,that a finding of a recognized psychiatric or psychological injury, is no longer required for a plaintiff to succeed in a claim for mental distress.

At about the same time that Saadati was released, the Ontario Court of Appeal in Nissen reminded us that the imposition of a cap on general damages is limited to “personal injury” actions.  The Ontario Court of Appeal in Nissen v. Durham Regional Police Services, upheld an award of $345,000 for mental distress and aggravated damages. The issue as to whether a cap applies to instances of “mental distress” arising in non-personal injury torts (e.g. negligence causing economic loss) is an open question which the Court of Appeal did not settle in Nissen. The purpose of this paper is to address the impact of the Nissen decision.

An analysis of Nissen requires a review of the principles governing general damages awards and the adoption of a cap. I also address below cases, where the Supreme Court held that a cap on general damages, did not apply.

A Brief Review of Seminal Cases Pertaining to the law of “Mental Distress”

In Mustapha, the Supreme Court of Canada held that there is no compensation for unusual reactions resulting from a negligent act. In addressing whether damages are foreseeable, it is assumed that the plaintiff is a person of “ordinary fortitude”.[2]

As mentioned above the Supreme Court in Saadati, held that in proving a compensable mental injury, plaintiffs are not required as a matter of law to establish that the mental suffering is a recognizable psychiatric or psychological illness. To succeed the plaintiff must show that the injury (mental) is serious, prolonged and rises above the ordinary annoyances, anxieties and fears that come with living in a civil society.[3] As the focus of the paper is not Saadati which was addressed at last year’s conference, I append a table of examples of cases where Courts have applied the principles of Saadati in deciding whether a claim for mental distress was established.[4]

Principles Regarding General Damages

Courts have stressed that the purpose of general damages is not to set a value on the loss of a plaintiff’s function or the value of lost happiness. Rather, the award is intended to provide the plaintiff with the means to make arrangements beyond those related directly to his/her injury so that his or her life will be more endurable.[5] In Rizzi v. Mavros, the Court of Appeal stressed that the award is to:

“(…) aim to alleviate the plaintiff’s misfortune allowing him or her to live as tolerably as possible.”[6]

There should be a degree of consistency and uniformity in awards for general damages in similar cases[7]. As the Supreme Court stated in Andrews:

“Everyone in Canada wherever he may reside, is entitled to more or less equal measure of compensation for similar non-pecuniary loss”[8]

An award for general damages is to be an amount that is fair to the plaintiff and society as a whole.[9] Fairness is to gauged by earlier decisions.[10]

As the purpose of awarding general damages is to compensate a plaintiff for his/her loss, the award must also take into account the circumstances of the plaintiff and the effect of the injuries, on him or her. This was addressed by the Ontario Court of Appeal in Koukounakis v. Stainrod[11]. In that matter, the plaintiff suffered from a temporomandibular joint dysfunction as a result of a motor vehicle accident. The plaintiff had undergone 4 surgeries as well as other treatments which did not result in significant improvement. Her surgeon testified that this was the worst example of TMJ function, he had seen in 20 years of practice and that “nothing comes close to this”. Her surgeon stated:

“We got in there and (…) there was nothing normal in that joint that I could see at all. I could not find the temporal mandibular joint disc. (…)
So what we had, was a mass, like a hole. It looked like a grenade had gone off in there. There was just nothing normal in this space.”

The Court of Appeal noted that the plaintiff would need ongoing and substantial dental work for the rest of her life. It was found that she had chronic stress, depression, headaches, codeine dependency and anorexia. The defendants appealed the jury award of $180,000. The Court stressed that the Canadian approach to general damages emphasizes the effect of the injury or disability on the particular plaintiff. It held that the award of $180,000 (when the upper limit was $225,000) in that matter was not so excessive and therefore did not warrant the Court’s intervention.[12]

The Court of Appeal will not interfere with an award of damages assessed by a jury unless it shocks the Court’s conscience and sense of justice.[13]Put another way, a jury verdict will only be set aside where it is “so plainly unreasonable and unjust that no jury, reviewing the evidence as whole(…) could have reached it”[14].

Cap on General Damages

The Supreme Court of Canada imposed an “upper limit” or “cap” on general damages in personal injury cases in the 1978 trilogy case Andrews v. Grand and Toy Alberta Ltd.[15] In Andrews, the Supreme Court stressed that the paramount concern of Courts in awarding damages, was that a plaintiff will have adequate future care.[16] It followed that Courts wished to ensure that any award would cover the plaintiff’s costs of care i.e. the pecuniary losses.

However, the Supreme Court found that the social burden of large awards, was a factor deserving of considerable weight with respect to non-pecuniary damages (i.e. general damages – as opposed to pecuniary damages e.g. costs of care)[17]. The Court noted that there was no objective yard stick for translating non-pecuniary losses “such as pain and suffering, and loss of amenities, into monetary terms”.[18] The Court stated these had soared to dramatically high levels in the United States. It noted that this was the area where there was the clearest justification for moderation and therefore the adoption of an upper limit on general damages.[19]

The Supreme Court explained the reason for an upper limit (a cap) on the value of general damages. In essence, it stressed that “general damages” are in addition to  amounts addressing the care needs of the plaintiff (these are large amounts in the case of catastrophic injuries). Hence, awards for general damages are additional monies to make life more endurable. In this respect, the Court stated:

“(…) If the principle of the paramountcy of care is accepted, then it follows that there is more room for the consideration of other policy factors in the assessment of damages for non-pecuniary losses.

(…)

If damages for non-pecuniary loss are viewed from a functional perspective, it is reasonable that large amounts should not be awarded once a person is properly provided for in terms of future care for his injuries and disabilities. The money for future care is to provide physical arrangements for assistance, equipment and facilities directly related to the injuries. Additional money to make life more endurable should then be seen as providing more general physical arrangements above and beyond those related directly to the injuries. The result is a coordinated and interlocking basis for compensation, and a more rational justification for non-pecuniary loss compensation.”[20]
(emphasis added)

The Ontario Court of Appeal in Koukounakis, stressed that the cap was an arbitrary figure adopted to respond to policy concerns (i.e. large awards) and was on the assumption that awards under other heads of damages (e.g. future care), largely achieved the compensation goal.[21] The Court of Appeal stressed that attempts to use the upper limit other than as a very rough guide for comparative purposes, ignore the policy reasons for the creation of the cap.[22]

The Ontario Court of Appeal has held that where a trial judge is of the view that non-pecuniary damages could be awarded at or near the cap, the judge must explain to the jury not to engage in a “direct” comparison and advise the jury that the cap was established for the policy reasons discussed in Andrews [23]. The Court of Appeal identified that these policy reasons were the heavy financial burden that otherwise would result from excessive awards.[24]

Seminal Cases Where the Supreme Court Has Held That a Cap on General Damages is Not Applicable

Young v. Bella

The Supreme Court held in Young v. Bella that at that time, there was no cap on general damages in an action for negligence causing economic loss.[25] Policy reasons for the imposition of cap in such an action, were not before the Court.

The plaintiff, Ms. Young, was a university student taking courses towards her goal of being admitted to the Newfoundland School of Social Work. A misunderstanding with respect to a term paper which was missing a footnote, lead her professor, Ms. Bella to believe that she was possibly a child abuser. This later lead to a report to the Child Protection Services.

The term paper pertained to juvenile sex offenders. The appendix was a case study from a textbook which was a “first person” account of sexual abuse. In the absence of a footnote, professor Bella believed that the account was autobiographical, was a confession by the plaintiff of having sexually abused children and was a cry for help. Professor Bella made an informal phone call to the Child Protection Services and was advised to seek an explanation from the plaintiff which professor Bella did not seek.  Instead Ms. Bella provided the Appendix to the School of Social Work and advised the Director that it was not referenced, nor was there an explanation for it “in terms of the paper”.  The Appendix was sent to Child Protection Services and the Director of the School of Social Work suggested that it was alarming and that it may be appropriate for the local RCMP detachment to follow-up.

The plaintiff’s application to the School of Social Work was denied. The plaintiff only became aware of the misunderstanding 2 years later when Child Protection Services (CPS) interviewed her.  CPS concluded its investigation within 24 hours after Ms. Young provided the excerpt from the textbook, setting out the same text as the Appendix to the term paper.

The Court found that Ms. Young suffered an economic loss as the events terminated her hope of becoming a social worker. She had difficulty in finding work in light of the mistaken belief that she had been identified as a potential child abuser. There was evidence before the jury that she suffered anxiety, embarrassment, insomnia, paranoia and depression as a result of the false report. The jury found that the plaintiff’s professors breached the duty of care owed to a student. The jury awarded $430,000 in general damages.

The Supreme Court decided that the cap did not apply. It stressed that the policy considerations in instances of negligence causing a catastrophic personal injury, were not applicable and should not be extended to limit the award. It stressed that it had rejected the application of a upper limit for general damages in defamation actions. It further stated:

“In our view, the case for imposing a cap in cases of negligence causing economic loss is not made here either.”[26]

The Supreme Court adopted with approval a statement of the British Columbia Court of Appeal where it was stressed that there was no evidence of any impact on the public purse and that a cap was not required to protect the general public from “a serious social burden”, such as enormous insurance premiums.[27]

The issue as to whether a cap applies to non-pecuniary damage “outside the catastrophic personal injury context”, was left for another day. The Supreme Court stated:

We leave open for consideration in another case (where the policy considerations supporting a cap are more fully developed in evidence and argument) the issue of whether and in what circumstances the cap applies to non-pecuniary damage awards outside the catastrophic personal injury context.[28]

Except in one instance[29], up until 2017, Young v. Bella’ s application in Ontario was limited to sexual abuse cases. It should be noted though that in sexual abuse cases, damages are awarded to compensate for the humiliation and degradation[30].

Young v. Bella was applied in an action for negligent police investigation where the trial judge awarded $200,000 in general damages for humiliation and worry suffered by the plaintiff.[31] In that matter, the Court of Appeal reversed the finding of liability and provided obiter comments on the trial judge’s reliance on Young v. Bella in awarding $200,000 in damages. The Court of Appeal found the emotional upset suffered by the plaintiff, did not rise to the level of personal injury compensable in accordance with the principles of Mustapha[32]. As this case predated Saadati, the Court of Appeal also stressed that there was no evidence of a psychiatric (or psychological) disorder.[33]

Cinar Corporation v. Robinson – Copyright Infringement

In Cinar Corporation v. Robinson, the Supreme Court held that there was no cap on general damages in actions for copyright infringement. It reminded us that the policy concerns in bodily injury cases, was the burden on society of increasing amounts awarded for general damages.[34] It is of interest that the Supreme Court clarifies in Cinar, that the social burden was with respect to general damages. A reading of Andrews when the Supreme Court adopted a cap, could suggest that the court’s concern at that time, was the rising awards for future care costs.

In Cinar, the Supreme Court stressed that Cinar did not persuade the Court that there was an imminent risk of a burdensome upward trend in general damages in copyright infringement cases. Hence, there were no policy concerns which would justify the adoption of an upper limit on general damages in copyright infringement cases.[35]

The facts giving rise to the claim were that Mr. Robinson had shared with Cinar, story boards and scripts for a children’s television show. Marketing efforts failed and the project was abandoned. Robinson brought an action for copyright infringement after a children’s show depicting characters and story similar to his own project, was aired. The trial judge awarded $5.2 million to Mr. Robinson, including $1.7 million for the disgorgement of profits, $1 million in punitive damages and $400,000 for psychological harm. Relying on Andrews, the Quebec Court of Appeal reduced the award for psychological injury to 50% of the value of the cap at the time (i.e. $121,000).

Cinar had advanced two arguments to the Supreme Court in seeking a revision of the $400,000 award for general damages by the trial judge. It advanced:

  • That a cap should be imposed on all general damages regardless of whether they stem from bodily injury; or alternatively
  • That the general damages in this case stemmed from a bodily injury.

The Court decided against extending the Andrews cap to general damages which did not arise from a “bodily injury”.  As mentioned above, it noted that similar to defamation cases, there was no imminent risk of a burden on society of an upward trend in general damages arising in copyright infringement cases.[36]

There was much discussion however in Cinar, as to whether Mr. Robinson’s general damages could be characterized as stemming from a “bodily injury” within the definition of the Quebec Civil Code. This issue was resolved on the basis of the interpretation of the phrase “bodily injury” in the Quebec Civil Code. The Supreme Court in an earlier decision had held that “bodily injury” within the meaning of the Civil Code, required “some form of a breach of physical integrity”[37].

The Supreme Court drew a distinction between an injury which is itself a breach of a victim’s “physical integrity” and an act which “had an impact on the physical health of the victim”. It also stressed that interference with rights which are of a moral nature are not included in bodily injury claims.[38] Applying the law to the facts in Cinar, the Court found that the copyright infringement was not a breach of Mr. Robinson’s physical integrity but rather it caused a deterioration in Mr. Robinson’s “physical” health. As such, the copyright infringement, was not a “bodily injury”[39]. Rather, the Court described Mr. Robinson’s injury as a “material injury”.  The Supreme Court of Canada explained this nuance in the context of a copyright infringement as follows:

“It is more appropriate to characterize Robinson’s psychological suffering as non-pecuniary damage stemming from material injury. Indeed the infringement of copyright was a breach of Robinson’s property rights. It is the initial breach, rather than the consequences flowing from that breach which serves to characterize the type of injuries suffered (…) ‘the appropriation of (…) Robinson’s work is, for him a material injury with pecuniary consequences (the profits generated by using it) and non-pecuniary consequences (distress, emotional distress or in other words psychological injury that results from it) (…) the scope of application of the Andrews’ cap is limited; it does not apply to non-pecuniary damages stemming from material injury’” [40]

(emphasis added)

It remains to be seen whether Cinar will be distinguished in common law provinces on the basis that the outcome depended on the interpretation of “bodily injury” in the Quebec Civil Code. Alternatively, Courts in Common Law provinces in deciding whether the cap applies, may be also drawing a distinction between psychological suffering arising from a “material” injury (as in Cinar ) and cases where the injury itself was a “breach of the victim’s physical integrity”. I anticipate a future debate as to whether “physical integrity” also encompasses a person’s mental health. It will be advanced that this issue has been resolved by the Supreme Court of Canada in Mustapha v. Culligan of Canada Ltd.,[41] where it held that serious and prolonged mental health issues which rise above the ordinary annoyances anxieties and fears “that people living in society routinely accept”, is “personal injury” at law[42] and therefore “physical injury” also includes the integrity of the person’s mental health. Further, in Cinar, the Supreme Court used interchangeably the phrases “deterioration of Robinson’s physical health” and “Robinson’s psychological suffering”.[43]

In light of Nissen which I discuss below, I anticipate that in future cases, in deciding whether the Andrews cap applies, Courts will be determining whether there was a material injury causing a psychological injury (in which case, a cap would not apply) or alternatively whether the primary breach was a “breach of the plaintiff’s physical integrity (including the integrity of the plaintiff’s mental health).

Nissen v. Durham Regional Police Services Board

Nissen v. Durham Regional Police Services Board[44] was decided against the backdrop of the decisions of the Supreme Court in Cinar and Young where the Supreme Court had held that a cap was not applicable to the mental distress damages, in those actions.

The cause of action in Nissen was the breach of the promise of confidentiality given by the police to an informer. In the words of the Court of Appeal, the case fit squarely within the “long recognized cause of action for breach of confidence”.[45]

The plaintiff in Nissen, became concerned about her neighbour’s son when she heard that he and his brother had stolen guns from another neighbour’s home and had brought them to school. The plaintiff knew her neighbour’s son as he had babysat, at times, at her home. At one time, he had been angry when she had asked the child of another neighbour to babysit.

The plaintiff told a friend that she wished to inform the police but did not wish to be identified. This confidence led to a police officer contacting her and inviting her to attend at the police station for an interview. The plaintiff was promised that she would not be identified. This was reiterated during the videotaped interview by the police officer. During the interview, the police officer advised her that the interview was between him and her, that records are kept for internal purposes and that there would be no disclosure even in instances when requests are made under the Freedom of Information legislation.

Within days of the interview, the neighbour’s son and his brother were arrested. The videotape of the plaintiff’s interview was contained in the crown disclosure brief. This led to harassment by the accuseds and their father. On one occasion, the father of the accuseds drove his truck in the direction of the plaintiff who was on the sidewalk. She had to jump behind a tree to avoid getting hit.

The plaintiff’s husband complained to the police. A police officer contacted the father of the accuseds and advised him not to tamper with witnesses nor to make any threats. The harassment continued and the plaintiffs moved.

The expert evidence delivered by the plaintiff was that she had PTSD which was likely to be permanent. The trial judge found that there was severe psychological injury and awarded $345,000 in general and aggravated damages. The trial judge only awarded these damages as well as damages for the Family Law Act claims of the plaintiff’s husband and her two children. The Court found that the plaintiff had not established that they had suffered income losses nor expenses related to the sale of their home as a result of the police actions.

At the time of the trial in Nissen, the value of theAndrews’ cap was $350,000[46]. The trial judge noted that there were “aggravating features” and that a damage award must take these into account. He identified that the aggravating features were that when the police became aware of the harassing behaviour, it did almost nothing about it. The trial judge further found that it was doubtful that the police impressed upon the father of the accuseds the importance of not harassing the plaintiff. The police officer who made the call, was not made aware of the truck incident. The trial judge also identified as an aggravating feature that there was no evidence of any follow-up with the father of the  accuseds, nor were the plaintiffs advised that the father of the accuseds had been spoken to.

As to the quantum of damages, the trial judge noted that the plaintiff’s psychological injury was not as severe as those in Cinar and Young v. Bella and noted that something less would be appropriate. He also noted that the issue as to whether the cap applied was moot, since he did not intend to award damages which would exceed the cap. As mentioned above, he awarded damages in the amount of $345,000 and at the time the cap for personal injury general damages was $350,000[47].

In its decision, the Court of Appeal reiterated that the trial judge had stated that the damages in Nissen were not as severe as in Cinar and Young v. Bella.  The Court of Appealalso reiterated that as the amount awarded was below the cap, the issue of the cap did not need to be decided.

The Court of Appeal held that the trial judge did not err in relying on the damages awarded in Cinar and Young v. Bella. With respect to the Cinar decision, the Court of Appeal stressed that the Supreme Court of Canada had stated that the integrity of Mr. Robinson’s “personal creative process was violated, causing deep psychological suffering”. The Court of Appeal held that an award for psychological harm as a result of a copyright infringement could shed some light “on an award for similar harm arising under a different cause of action[48].

The Court of Appeal made similar comments about comparing this case to the harm suffered by the plaintiff in Young v. Bella. It noted that the psychological injury of the plaintiff in Nissen was not “unlike” the injury of the plaintiff in Young. It further stated:

“I do not agree that the fact that if similar harm was caused by different wrongful act makes Young so different in quality that the trial judge erred in using it as a reference point when assessing damages in this case.”[49]

The Court of Appeal therefore upheld thedamages awarded by the Trial Judge.

Arguments to Distinguish Nissen

At issue is whether Nissen will be interpreted as setting a new value for mental distress claims. At issue as well is whether its application will be limited to instances where the initial breach is not a breach of a plaintiff’s physical integrity but rather another act which has an impact on the “physical health of the plaintiff”. This distinction has been raised by the Supreme Court of Canada as mentioned above in Cinar[50].

In Cinar, the Court found that Mr. Robinson’s psychological suffering was a non-pecuniary damage stemming from a material injury which was a breach of his property rights (i.e. infringement of his copyright). As mentioned above, with respect to the breach of Mr. Robinson’s property rights, the Supreme Court had stated:

“It is this initial breach, rather than the consequences flowing from that breach which serves to characterize the type of injury suffered (…) the appropriation of Claude Robinson’s work is for him a material injury with pecuniary consequences (the profits generated by using it) and non-pecuniary consequences (the stress, emotional distress) or in other words psychological injury that results from it.”[51]

Similarly, in Nissen, the initial breach was a breach of a promise of confidentiality. Arguably, just as in Cinar, the non-pecuniary consequence resulting from that breach, was the plaintiff’s psychological injury.

Further, given that the Court of Appeal sanctions the trial judge’s references to the awards in Young and Cinar, arguably this suggests that the Nissen action in the view of the Court of Appeal and trial judge, was not a “personal injury” action. Rather it was an action as in Cinar (and Young v. Bella) where the primary breach was not a breach of the physical integrity of the plaintiff but rather another breach such as in that case, a breach of a promise of confidentiality.

Given the principle of consistency and uniformity, if the Court was of the view that Nissen was a “personal injury” action, the Court would likely have made references to awards for PTSD in personal injury actions. [52] The damages awarded, however, are significantly higher than other cases where a plaintiff had PTSD.[53]

Another reason why Nissen should not be seen as setting the value for serious psychological injuries, is that the award also reflected aggravated damages. This distinction also applies in non-personal injury claims.  Aggravated damages are designed to compensate the plaintiff for the “additional harm caused to the plaintiff’s feelings by reprehensible or outrageous conduct on the part of the defendant”[54]. These damages are awarded when a defendant’s conduct causes a loss of dignity, humiliation, additional psychological injury or harm to the plaintiff’s feelings.[55]

Aggravated damages are not awarded in addition to general damages. Rather, general damages are to be assessed taking into account any aggravating features of the case.[56] In principle, aggravated damages are not to be assessed separately from the general damages[57].  The aggravated damages as identified by the trial judge in Nissen, was the failure by the police to take adequate steps to protect the plaintiff after the police was made aware of the truck incident. Most of the harassment occurred after the breach of the promise of confidentiality. As the Court of Appeal stated in Nissen:

“it is that quality of the defendant’s conduct that causes additional distress or humiliation that calls for compensation not captured by a purely conventional award (…)
(…)
I agree with the police that the first factor mentioned by the trial judge, failure to protect Ms. Stack’s anonymity, was not aggravating. However, I agree with the respondents that it was open to the trial judge to find that the failure of the police to take meaningful steps to protect Ms. Stack and her family from the harm they were suffering as a result of the wrongful disclosure of her identity did aggravate the damages she suffered.”[58]

On the one hand, one would argue that most of the damage in Nissen, was as a result of these “aggravating features” and this explains the amount of the award. Others would argue, however, that the damages would have been suffered even if the plaintiff had not made the police aware of the harassment and there was no basis for “aggravated damages”.

As I address in the conclusion below, there are arguments as well to distinguish the decisions of the Supreme Court in Cinar and Young v. Bella and the large general damages awards in those decisions.

Conclusion

The legacy of Nissen remains to be seen. It should be noted however, that it has not been cited in any case law since its release in January 2017. As the award included aggravated damages (which by the description in the decision, would not be insignificant), lawyers may find that it is of limited use in their submissions to Court on the value of damages.

Given that the damages arose out of the tort of a breach of confidence, arguably the award, is not reflective of awards in personal injury claims.  Because of the aggravated damages component, it should be argued that the award does not reflect either the value of general damages for mental distress claims outside of the personal injury context, either.  Though the trial judge and the Court of Appeal in Nissen refer to the general damages awards in Cinar andYoung v. Bella (which were respectively $400,000 and $430,000) arguments to distinguish these cases should be advanced before the courts.

The jury found in Young v. Bella that Ms. Young experienced pain and suffering, loss of enjoyment of life, as well as a loss of her reputation as a result of the actions of the defendants.  The general damages in Young v. Bella, therefore, also included  damages for the loss of the plaintiff’s reputation.[59]  Similarly, in Cinar, the Court compared the loss suffered by Mr. Robinson to the harm suffered by victims of defamation. In this respect, the Supreme Court stated:

“I agree with the trial judge that Robinson’s non-pecuniary damages are analogous to those claimed by a victim of defamation.  The product of Robinson’s artistic exertions was taken from him and the integrity from his personal creative process was violated, causing deep psychological suffering.  These harms are similar to those suffered by a victim of defamation.”[60]

(emphasis added)

The loss of reputation component of the general damages in Young v. Bella as well as the similarity to a defamation “harm” in Cinar, may explain the higher value of the general damages awards upheld by the Supreme Court in those cases.  These differences provide good arguments to distinguish these cases from other mental distress claims.

Lastly, as illustrated in Young v. Bella, an issue which has yet to be resolved by the Courts is whether there should be the imposition of an upper limit on the value of psychological injury/mental distress damages in cases other than where the primary injury is a “personal injury”. In the case of defamation, the Supreme Court has already decided the issue.  It has held that there is to be no cap on general damages as this would be seen as the price for a license to defame and would change “the whole character and function of the law of defamation”[61].


Table 1. Causes of Injury and Symptoms in Saadati and a Sample of Post-Saadati Cases.
Prepared by Brianna Mantynen, Student-at-Law, Stieber Berlach LLP

Citation Did the Plaintiff’s Claim Succeed? Cause of Injury and Symptoms of Injury
Nissen v Durham Regional Police Services Board, 2015 ONSC 1268, aff’d 2017 ONCA 10. YES Cause: breach of confidence

Symptoms: PTSD and high anxiety

Saadati v Moorhead, 2017 SCC 28. YES Cause: physical injury stemming from a series of MVAs

Symptoms: personality change, cognitive difficulties, irritability, “was a changed man”, slowed speech

Ward v Metepenagiag Mi’kmaq First Nation, [2017] CLAD No. 170. NO Cause: unjust dismissal by her employer the Metepenagiag Mi’kmaq First Nation

Symptoms: “distress”

·       “Patricia Ward has fallen short, as she did not present evidence, other than several self-serving statements, as to how AB’s statements and the dismissal had distressed her. My assessment of the evidence does not lead me to conclude that MMFN acted in a way that was unfair or was in bad faith or was, for example, untruthful, misleading or unduly insensitive in regards to, and in its dealings with, Patricia Ward during her employment termination process.”[62]

Urquhart v MacIsaac, 2017 NSSC 313. NO Cause: breach of an agreement of purchase and sale and professional negligence

Symptoms: anger, guilty, upset, worry (Mr. Urquhart); ongoing anxiety (Mrs. Urquhart).

·       “Justice Brown’s comments at para. 37 stand for the proposition that mere psychological upset or trivial annoyances, anxieties and fears are not compensable”[63]

·       “Given the evidence marshaled in this case, I am not satisfied the Urquharts qualify for general damages for mental injury. In this regard, their evidence was limited with no documentary support or expert opinion.”[64]

Snowball v Ornge, 2017 ONSC 4601. N/A
(Rule 21 Motion Dismissed)
Cause: receipt of news of death of loved one (they are arguing on the basis of the alleged negligent actions of Ornge)

Symptoms: see list below:

·       recurrent, involuntary, intrusive and distressing memories, and dreams related to Christopher Snowball’s death

·       dissociative reactions;

·       Intense and prolonged physical distress at exposure to cues that remind them of Christopher Snowball;

·       avoidance of external reminders that arouse distressing memories;

·       persistent negative emotional states;

·       markedly diminished interest or participation in significant activities;

·       feelings of detachment and estrangement from others;

·       persistent inability to experience positive emotions;

·       irritable behavior and angry outbursts;

·       hypervigilance;

·       problems with concentration;

·       significant sleep disturbance and recurring nightmares;

·       recurring ruminations over how he died; and

·       unresolved anger.

 

Gregg v Ralen, 2018 BCSC 171. YES Cause: minor traumatic brain injury from MVA

Symptoms: soft tissue injuries as well as…

·       Cognitive issues: headaches, dizziness, photophobia, noise intolerance, memory loss, decreased cognitive function, poor concentration, fatigue, and physical exercise intolerance(although these cognitive issues have improved considerably);

·       Psychological issues: depression; mood disorder, anxiety disorder, organic personality disorder changes (withdrawn, loss of confidence) and pain disorder with major stress and suffering (although the psychological issues have improved considerably).

Holm v Agat Laboratories, 2018 ABQB 415. NO – but the Court DID award agg. damages in the amount of $20,000 Cause: constructive dismissal

Symptoms: anxiety, addiction

·       “I am also satisfied that Holm suffered mental distress for some months post termination which is supported by his evidence and that of his wife. Ms. Holm gave evidence that her husband sought counselling, which he had never done in the past, and filled at least two prescriptions for anti-anxiety medication, also not something he had done in the past. He also began gambling by using VLT’s and drinking in the afternoons, also both out of character for Holm”[65]

Perzoff v Pringle,2017 BCSC 1448. NO Cause: negligence and negligent misrepresentation

Symptoms: stress

·       “…the plaintiffs have not established that that the possibility of mental distress upon a breach of the contract was in the reasonable contemplation of the parties at the time the contract was formed.”[66]

·       “I conclude that the plaintiffs have not met the criteria set out in Saadati. Accordingly, they have not established a basis for an award in tort for mental distress.”[67]

Ponsart v Kong, 2017 BCSC 1126. YES Cause: MVA

Symptoms: anxiety; depression associated with chronic pain

A.H. v D.K., 2018 ONSC 4173. YES Cause: intentional infliction of emotional distress and conspiracy

Symptoms: great stress resulting in his inability to eat or sleep, and in his doctor’s advice to him to take time off from work; sabbatical from work

MacKenzie v John Doe, 2018 BCSC 104. NO Cause: MVA causing physical injuries

Symptoms: mood fluctuations and irritability

·       “Here, no evidence was placed before the Court with respect to the plaintiff’s mood fluctuations and irritability having a medical cause apart from the plaintiff’s testimony. I appreciate that with pain will come some mood irritability; however, there has been no expert evidence called connecting this this to the accident. Consequently, on a balance of probabilities, I do not find that the plaintiff has proven this aspect. I accept that the plaintiff has mood and irritability problems, but not to the ex-tent that they are a psychological injury.”[68]

Lau v Royal Bank of Canada, 2017 BCCA 253. NO Cause: wrongful dismissal

Symptoms: slow and monotone manner in which the Plaintiff testified on the witness stand

Galea v Wal-Mart, 2017 ONSC 245. YES Cause: wrongful dismissal

Symptoms: mental and emotional distress (no further detail is given)

R.N. v Haulli, 2018 NUCJ 10. YES Cause: sexual assault

Symptoms:

·       R.W. and R.N.:  emotional distress, inability to regulate emotions, inability to self-soothe, attention deficits related to cognitive deficits and depression, amotivation stemming from depression and multiple failed attempts at schooling, inability to sustain relationships and chronic rage leading to aggressive behaviour.  Major depression, PTSD, suicidal ideation, drug and alcohol addictions.

·       B.A.: “at times” experienced the “core” symptoms of PTSD.  Difficulties with emotional lability, suicidality, substance abuse and aggression.

L.Q.: dysthymic disorder, defined as essentially chronic, mild, depression; this is a common co-occuring finding in persons suffering from ‘complex’ PTSD. She also likely meets the criteria for an alcohol use disorder, currently in remission.  Unspecified Trauma – and Stressor- related Disorder; history of low self-esteem, anger and emotional dysregulation, suicidal ideation, mistrust, shame, low mood, panic and anxiety, impersonal sexuality, pain and IBS (now seemingly remitted), and intrusive experiences. In large measure, her symptoms have been symptoms of ‘complex’ post-traumatic stress disorder (PTSD).

Johnson v Cline, 2017 ONSC 3916. YES Cause: nuisance

Symptoms: anxiety, stress and depression

·       “The plight of the Johnsons was neither minor nor transient.”[69]

·       “Mr. Cline’s actions have made them feel like ‘prisoners in their own home’.”[70]

·       “Both Mr. and Mrs. Johnson testified as to suffering depression and anxiety as a result of the hostility demonstrated by Mr. Cline towards them and their constant apprehension that anything they did would promote further retaliatory actions by him directly towards them, or through the authorities.”[71] [However, the judge did not have any evidence to this effect other than their testimony and seemed suspicious of it.]

·       There was no way to establish causally that the nuisance had caused the stress and depression of Mrs. Johnson.  But Judge awarded psych damages for both adults anyway.

 

Table 2. A Sample of Cases Illustrating Trends in General and Aggravated Damages for Post-Traumatic Stress Disorder.

Prepared by Brianna Mantynen, Student-at-Law, Stieber Berlach LLP

Citation Damages Awarded
(General + Aggravated)
Cause of Injury and Symptoms of Injury
Evans v Sproule, [2008] OJ No. 4518 (SC). $100,000.00 Cause: sexual assault by a police officer; Toronto Police Services board held vicariously liable for the tortious conduct.  Claims in negligence and breach of fiduciary duty failed.

Symptoms: post-traumatic stress disorder; disturbed sleep

Irvine v Smith, [2008] OJ No. 547 (SC). $40,000.00 Cause: : negligence: man negligently ran into Mr. Smith’s car (on foot) while Mr. Smith was driving

Symptoms: post-traumatic stress disorder, mental distress, and nervous shock

A.C. v Y.J.C., [2003] OJ No. 758 (SC). $100,000.00 for each of the two plaintiffs Cause: mother assaulted children and subjected them to physical and mental abuse; breach of fiduciary duty

Symptoms: post-traumatic stress disorder and related disabilities, including persistent anxiety, emotional constriction, dissociative identity disorder

S.R. v J. R., 2014 ONSC 317. For sexual assault (battery) (first event): $100,000.00

For battery (second event): $10,000.00

For breach of fiduciary duty:$40,000.00

Cause: sexual assault by father, battery, breach of fiduciary duty

Symptoms: post-traumatic stress disorder

Merrifield v Canada (Attorney General), 2017 ONSC 1333. $100,000.00 Cause: This was an employment case.  The plaintiff made claims of harassment and intentional infliction of mental suffering.

Symptoms: post-traumatic stress disorder; depression; inability to work and bathe and get out of bed

Jane Doe 464533 v N.D., 2016 ONSC 541. $50,00000 (General) and $25,000.00 (Aggravated)

$75,000.00 total (excluding punitive damages)

Cause: intrusion upon seclusion, intentional infliction of mental distress, invasion of privacy (boyfriend released her private video)

Symptoms: post-traumatic stress disorder; mental upset requiring visit to the crisis center; depression; apprehension about her future

 

C.S. (1) v J.S., 2013 ONSC 3290. $225,000.00 Cause: sexual assault, battery, and intentional infliction of mental distress (this was an abduction scenario)

Symptoms: post-traumatic stress disorder; depression; mild brain injury

 

R.B. v E.S. (Litigation Guardian of), 2017 ONSC 7866. $70,000.00
[motion for summary judgment]
Cause: battery (sexual assault) and breach of fiduciary duty
Symptoms: post-traumatic stress disorder; depression; anxiety

[1]I wish to thank Brianna Mantynen, student-at-law at Stieber Berlach LLP for her invaluable assistance in the preparation of this paper.

[2]Mustapha v. Culligan 2008 SCC 27 at paras 15, 18

[3]Saadati v. Moorehead [Saadati ] 2017 SCJ 28 at paras 37-38

[4] See Table 1 Example of Cases Addressing Cause of Injury and Symptoms in Post Saadati Cases

[5]Rizzi 2008 ONCA 172 [Rizzi ] at para 32; Andrews v. Grand and Toy Alberta 1978 CanLII 1 (SCC); [1978] 2 SCR 229 [Andrews ], at p. 262

[6] Rizzi, supra, note 5, at para 32

[7]Koukounakis v. Stainrod 1995 CanLII 621(ONCA) [Koukounakis ]; Andrews, supra note 5 at p. 263-264 ; Cinar Corporation v. Robinson, 2013 SCC 73 [Cinar ] at para 96; Mulroy v. Aqua Scene 1982 OJ 87 (ONCA) [Mulroy ] at para 12

[8]Andrews, note 5, at p. 263

[9] Rizzi, supra, note 5, at para 34

[10]Andrews, supra note 5, at p. 261

[11]Koukounakis, supra note 7

[12]Koukounakis v. Stainrod, Supra note 7; See also Mulroy, Supra note 7, at para 12

[13]Hill v. Church of Scientology of Toronto,1995 CanLII 59 (SCC) [Hill] at para 159; citing Walker v. C.F.T.O. Ltd. 1987 CanLII 126 (ONCA) at p. 110; Young v. Bella 2006 SCJ 2 at para 66

[14]Rizzi, supra note 5, at para

[15]Andrews, supra note 5

[16] Id at p. 261

[17] Ibid

[18] Ibid

[19] Ibid

[20] Id at pp. 261, 262

[21]Koukounakis, supra note 7, at p. 8 (electronic copy)

[22] Ibid

[23]Rizzi, supra note 5 at para 32

[24]Rizzi, supra note 5 at para 33

[25]Young v. Bella 2006 SCJ 2 [Young ] at para 65

[26]Young, supra note 24 at para 65

[27] Ibid

[28] Id at para 66

[29]495793 Ontario Ltd (Central Auto Parts) v. Barkley 2016 ONCA 656 [Central Auto Parts ]

[30]Evans v. Sproule 2008 CanLII 58428 (ONSC) at para 124, 128 and 130

[31]Central Auto Parts, supra note 28 at paras 10, 109

[32]Central Auto Parts  supra note 28 at paras 109-110

[33]Ibid, at paras 111-114

[34]Cinar Corporation v. Robinson, 2013 SCJ 73 [Cinar ] at para 99

[35] Ibid

[36] Ibid

[37] Id at para 100

[38] Ibid

[39] Ibid

[40]Cinar, supra note 33 at para 102

[41] 2008 SCC 27

[42] Id at paras 9-10

[43]Cinar, supra note 33 at paras 101-102

[44]2017 ONCA 10 [Nissen]

[45] Id at para 25, 32

[46]Nissen v.  Durham (Regional) Police Services Board 2015 ONSC 1268 [Nissen Trial Decision ], at para 369

[47] Id at paras 369-371

[48]Nissen, supra note 42 at para 43

[49] Id at para 44

[50]Cinar, supra note 33 at paras 100,102

[51] Id at para 102

[52]Bearing in mind however that there are variations which are explained by the impact of the injuries may have on different plaintiffs, see also Koukounakis, Supra note 7

[53] See table Sample of General And Aggravated Damages For Post-Traumatic Stress Disorder

[54]McIntyre v. Grigg, 2006 CanLII 37326 (ONCA) [McIntyre] at para 49

[55] Id at para 50

[56] Ibid

[57] Id at para 51

[58]Nissen, supra note 42, at para 55-56

[59]Young v. Bella 2004 NLCA 60, at para 132; Young v. Bella 2006 SCC 3 at para 56

[60]Cina r, supra note 33, at para 108

[61] see Hill, supra note 13, at para 170

[62]Ward at para 121.

[63]Urquhart at para 230.

[64]Urquhart at para 231.

[65]Holm at para 68.

[66]Perzoff at para 82.

[67]Perzoff at para 84.

[68]MacKenzie at para 123.

[69]Johnson at para 123.

[70]Johnson at para 119.

[71]Johnson at para 120.