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Damages - Mental Distress/Injury Damages (2). Palmer v. Teva Canada Limited
In Palmer v. Teva Canada Limited (Ont CA, 2024) the Ontario Court of Appeal dismissed an appeal against a lower court dismissal of a class action certification motion.
The court discussed compensable mental injury harm, here where consumed drugs were found to be contaminated but no physical harm was yet proven (ie. they were speculative):(b) Psychological injury
[53] The appellants argue the motion judge erred in law by mischaracterizing their claim in psychological harm as one of future harm.
[54] I disagree. The motion judge stated the plaintiffs’ claim correctly throughout his reasons. For example, at paras. 162 and 186, the motion judge differentiated psychological harm from future harm:In the immediate case, the Plaintiffs’ products liability claim has two branches to it. The first branch is a personal injury claim for psychological harm. The Plaintiffs purposefully eschew a physical injury claim for damages for valsartan causing cancer; rather, the Plaintiffs’ case is built on the notion that the putative class members have a claim for psychological harm arising from the contaminated valsartan being recalled and their being advised that NDMA and NDEA are possible carcinogens increasing the risk that the Class Members will be diagnosed with cancer.
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Moving on to a conclusion, in my opinion, based on this case law, it is plain and obvious that in the immediate case, the products liability claim for damages for psychological harm is not certifiable as pleaded or at all. Neither the risk of future physical or psychological harm nor the present anxiety occasioned by the risk of future physical or psychological harm is a compensable harm, and, thus, it is plain and obvious that the damages constituent element of a negligence cause of action is missing that and accordingly the cause of action criterion is not satisfied in the immediate case. This impediment cannot be cured by the Plaintiffs’ amending their pleadings. [55] The motion judge thus explicitly acknowledged that the claim was for present anxiety resulting from notification that the appellants had ingested contaminated valsartan.
[56] There is more merit to the appellants’ argument that the motion judge erred in concluding that psychological distress based on a fear of future harm (i.e., the manifestation of cancer), is non-compensable. To the extent that the motion judge reasoned there could be no cause of action for present psychological harm occasioned by the risk of future physical harm (i.e., a cancer diagnosis), this was an error. Psychological distress caused by even a speculative concern of an increased risk is still harm.
[57] The common law’s path to accepting the concept of negligently caused mental harm was canvassed by Brown J. in Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543. It is an error to dismiss mental injury arising from fear of future harm without first assessing the mental injury against the criteria generally applicable to the tort of negligence. In other words, recoverability for mental injury depends upon the plaintiff satisfying the same elements required for any successful action in negligence: Saadati, at para. 19.
[58] The principles for analyzing negligence claims for mental injury are set out in Mustapha. In that case, a plaintiff who purchased bottled water from the defendant, discovered dead flies floating in an unopened, unused bottle of drinking water. The plaintiff did not drink the water. But the plaintiff became obsessed with the event, sustaining psychiatric injuries including a major depressive disorder with associated phobia and anxiety. The question of liability in Mustapha did not turn on whether the plaintiff’s psychological injury was based on an imagined harm or a risk of harm or a speculative worry. The question, answered in the negative, was whether the plaintiff’s damages (psychological injury) were reasonably foreseeable.
[59] There are two guiding principles set out in Mustapha. First, not all psychological injuries rise to the level of being compensable in tort law. To qualify, they must be “serious and prolonged” and rise above the “ordinary annoyances, anxieties and fears”: Mustapha, at para. 9; Saadati, at para. 37. The appellants must pass a basic threshold noted in Mustapha, at para. 9:... psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset. Personal injury at law connotes serious trauma or illness ... The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury ... Quite simply, minor and transient upsets do not constitute personal injury, and hence do not amount to damage. [60] Second, not all mental injury will necessarily be caused, in fact or in law, by the defendant’s negligent conduct. Even where a plaintiff’s claim establishes a duty of care, breach of the duty, damage and factual causation, the plaintiff must still address legal causation. Legal causation is an inquiry into remoteness or foreseeability of the injury. This threshold question asks “whether the occurrence of mental harm in a person of ordinary fortitude was the reasonably foreseeable result of the defendant’s negligent conduct”: Saadati, at para. 20; Mustapha, at paras. 14-16.
[61] In Mustapha, for example, the plaintiff’s psychological injury was “serious and prolonged”; however, the claim failed on the last element of the negligence analysis: the plaintiff’s damage was too remote to have been caused in law by the defendant’s breach. The plaintiff’s extreme psychological reaction and ensuing harm exceeded the mental harm that would have been reasonably foreseeable from a person of ordinary fortitude seeing flies in the bottle of water: Mustapha, at paras. 14 and 18.
[62] Although I agree with the appellants that the motion judge did not conduct this analysis in relation to their claim for present psychological distress before dismissing the negligence claim as not viable and doomed to fail, I do not accept the appellants’ argument – based on Anderson v. Wilson (1999), 1999 CanLII 3753 (ON CA), 44 O.R. (3d) 673 (Ont. C.A.) – that the proposed action for mental injury satisfies the s. 5(1)(a) criterion.
[63] In Anderson, this court allowed the certification of a class action for nervous shock caused by a notice sent by public health authorities advising class members that, while they were receiving treatment at certain clinics, they had been exposed to hepatitis B and faced possible infection. This court held that it was arguably foreseeable that the notice would result in shock. Given the “uncertain state of the law on tort relief for nervous shock”, it was not plain and obvious that the claim for the tort of mental distress standing alone would fail: Anderson, at p. 679.
[64] However, at the time this court decided Anderson, it did not have the benefit of the doctrinal development provided by Mustapha: the articulation of (1) the basic threshold of injury needed to garner recovery, and (2) the “ordinary fortitude” test. The law is thus more determinate than it was when Anderson was decided. A claim that yesterday was allowed to proceed due to its novelty may have since been rendered hopeless by further developments in the law and appropriately weeded out. Such was the case in Capelet v. Brookfield Homes (Ontario) Limited, 2018 ONCA 742, where the plaintiff’s claim for mental injury sustained due to mould found within his house was summarily dismissed on the person of “ordinary fortitude” test: at para. 13; and in Healey v. Lakeridge Health Corp., 2011 ONCA 55, 103 O.R. (3d) 401, where the plaintiffs’ claim for mental injury sustained upon reading notices from the hospital that they had been exposed to tuberculosis did not meet the threshold of sufficient gravity and duration set out in Mustapha to qualify for compensation: at para. 64.
[65] The operation of these principles is also illustrated in Rothwell, where the House of Lords found that in the absence of a manifestation of harm, there could be no compensable damages for the wrongdoing of increasing the risk of harm. The House of Lords adopted a similar approach to Mustapha on the issue of whether a claim for present anxiety is actionable. As canvassed above, the House of Lords found that neither the physical injury of pleural plaques nor the mental injury of anxiety due to concern that exposure to asbestos could result in fatal disease, were actionable injuries. The anxiety about the potential future onset of a life-threatening disease by itself did not rise to a level to attract the attention of the law of tort: at para. 73. However, in that action, the House of Lords also considered – separate from the claims of co-plaintiffs – a claim for non-trivial mental injury on the part of a plaintiff whose anxiety caused clinical depression. The court assessed his claim against a standard similar to the person of “ordinary fortitude”, or, as the U.K. court described it, “a person of ‘sufficient fortitude’ or ‘customary phlegm’”: Rothwell, at para. 30 quoting Lord Porter in Hay or Bourhill v. Young, [1942] 2 All E.R. 396 at 409, [1943] A.C. 92, at p. 117. Ultimately, and similar again to Mustapha, the U.K. court concluded the severe depression experienced by the plaintiff was not actionable because it was an unforeseeable response beyond that of a person of “ordinary fortitude.” This is the correct approach to mental injury damages in a negligence action: the right to protection against psychiatric illness is limited and does not extend to an illness which would be suffered only by an unusually vulnerable person.
[66] Returning to the pleadings in this case, the appellants have failed to demonstrate that their mental injuries rise above the anxieties and fears commonly experienced from time to time by people living together in society. The extent of the appellants’ pleadings on this point is that class members will “inevitably experience worry, anxiety, upset and mental distress over not knowing whether prolonged ingesting of a toxic chemical has caused or will cause them to develop cancer or organ damage” and for each representative plaintiff plead standard language of experiencing “on a prolonged basis shock, worry, great mental distress and anxiety since learning of the Recall.” However, stock repetition of words echoing the legal test are not enough. The appellants have failed to plead the material facts needed to support damages recoverable under the tort, like those detailed for the plaintiffs in Mustapha or Saadati. Bare assertions of prolonged mental distress must be supported by material facts detailing the injury, otherwise a court cannot conduct the necessary analysis to conclude that mental injury has met the legal threshold: Imperial Tobacco, at para. 22. Since the facts as pleaded by the appellants are inadequate, the result reached by the motion judge is justified. The claim in negligence should not proceed.
[67] Even had the injuries pleaded met the threshold for recoverable damages, they would have foundered on the person of “ordinary fortitude” standard. The appellants pleaded that shock came from reading the recall announcement, and the court was directed in oral submissions to the wording of the Health Canada notices. These notices are incorporated by reference in the pleading, they are central enough to the negligence claim to form an integral part of the claim itself and may form part of the assessment of the pleadings: McCreight v. Canada (Attorney General), 2013 ONCA 483, 116 O.R. (3d) 429, at para. 32.
[68] I agree with the motion judge’s assessment that the notices seem intended to assuage concern. The class members were advised of the NDMA contamination, that NDMA is a potential human carcinogen that may cause cancer with long-term exposure, but told to continue taking their medications unless otherwise advised by their health care provider. Within approximately two months of its first notice, Health Canada further advised that its scientists had assessed the available data to determine the potential increased risk of developing cancer and released the information to help put the risk into context for Canadians. The risk was between 0.0086% and 0.0011%, which, as Health Canada pointed out, must be considered in the context of a 50% existing lifetime risk of developing cancer. I agree that the recall would not cause a person of reasonable fortitude to sustain a psychological injury at the level compensable in tort. I also defer to the motion judge’s discretion not to permit the appellants to amend their pleadings. As explained below, amending the pleadings would not cure the other defect of the case, namely that the psychological injuries would founder on the common issues criterion.
[69] In sum, I find no error in dismissing the motion for certification of the negligence claims for physical harm (including genotoxicity) and psychological harm not yet materialized. While I find the motion judge erred in his analytical treatment of the negligence claim vis-à-vis present psychological harm, it is an error without consequence. Having applied the correct analysis from Mustapha, the negligence claim for present psychological harm damages was not reasonably foreseeable in law and doomed to fail. I would dismiss the appeal of the plaintiffs’ negligence claims for physical and psychological harm damages, which cause of action is not certifiable. . Del Giudice v. Thompson
In Del Giudice v. Thompson (Ont CA, 2023) the Court of Appeal considered whether various causes of action for data breach claims were made out, here in determining whether causes of action where pleaded in class certification purposes.
In these quotes the court considers 'psychological damages' (aka 'mental distress'), here in negligence:[51] With respect to the claim of psychological damage, the motion judge noted that “negligence law does not recognize as compensable harm upset, disgust, anxiety, agitation or mere psychological upset that does not cause a serious and prolonged injury and that does not rise above the ordinary annoyances, anxieties and fears that people living in a society routinely experience”, drawing support from Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, at para. 37 and Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 9.
[52] The appellants do not take issue with this statement of law, but argue that the motion judge erred in refusing to accept at face value the pleading that the class members had suffered mental anguish to such a degree as to be compensable. Further, they point to Agnew-Americano v. Equifax Canada Co., 2019 ONSC 7110, at paras. 66, 68, 341, Obodo v. Trans Union of Canada, Inc., 2021 ONSC 7297, at paras. 75, 117, 119, 124-160, and Campbell v. Capital One Financial Corporation, 2022 BCSC 928, at para. 54 as examples of negligence claims that were certified with claims of mental anguish being the loss caused by the breach of the duty of care.
[53] The cases cited by the appellants are of limited use in this case. None of them constitute an example of a standalone negligence claim anchored by a psychological harm. Although Equifax is factually similar to the appellants’ action in that a claim in negligence causing psychological harm was certified, the certification was conceded at the certification motion and there was no adjudication on this point by the Divisional Court. Neither was the issue raised on appeal to this court. Of the several cases that have certified negligence claims based in part on emotional distress, all of them have done so on the basis that where a pecuniary loss has been alleged, damages for emotional distress can be claimed as well: Evans v. Bank of Nova Scotia, 2014 ONSC 2135, 55 C.P.C. (7th) 141, at para. 52; Campbell, at para. 54; Obodo (Ont. S.C.), at para. 143. None of these cases are authority for the proposition that a claim of emotional distress resulting from a breach of a duty of care in a data breach case is, on its own, a sufficient loss to ground a claim in negligence. The appellants’ claim is more ambitious, and the motion judge found the material facts needed to support it were not pleaded. He did not err in doing so. . Bothwell v. London Health Sciences Centre
In Bothwell v. London Health Sciences Centre (Ont CA, 2023) the Court of Appeal considered the law of mental injury damages, in particular assessing the leading Saadati case:[1] What legal principles did the Supreme Court of Canada establish in Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, for determining whether a claimant has demonstrated a mental injury? Are persistent feelings of frustration and anger, without more, a compensable mental injury? This appeal depends on the answers to those questions.
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III. THE LEGAL FRAMEWORK FOR PROVING MENTAL INJURY
[18] What constitutes mental injury and how it can be proven were the principal issues addressed by the Supreme Court in Saadati. Resolution of this appeal is heavily dependent on the reasoning in Saadati, particularly that which addresses how mental injury is to be distinguished from psychological upset. Consequently, before addressing the issues on this appeal, it is helpful to review the salient aspects of Saadati.
[19] Mr. Saadati was involved in a series of five motor-vehicle collisions. The trial judge found that the second accident caused Mr. Saadati “psychological injuries, including personality change and cognitive difficulties”. The trial judge’s finding of psychological injuries did not rest on an identified medical cause or on expert evidence. It was based on the testimony of Mr. Saadati’s friends and family that, after the accident, his personality changed for the worse. Once a funny, energetic, and charming individual, Mr. Saadati had become sullen and prone to mood swings. Historically close relationships with family and friends had deteriorated. He complained of headaches.
[20] The British Columbia Court of Appeal reversed the trial judge on the ground that Mr. Saadati had not demonstrated, with expert medical evidence, a recognizable psychiatric injury.
[21] The Supreme Court allowed a further appeal and restored the trial judge’s award. Justice Brown, writing for the Court, saw no legal error in the trial judge’s treatment of the evidence of Mr. Saadati’s symptoms as supporting a finding of mental injury. Although no expert evidence had been tendered, the evidence that the trial judge accepted showed that Mr. Saadati had suffered “a serious and prolonged disruption that transcended ordinary emotional upset or distress”: at para. 40.
[22] Justice Brown soundly rejected the notion that, to prove mental injury, the claimant must prove that their condition meets the threshold of a recognizable psychiatric illness: Saadati, at paras. 29-36. Rather, he explained, recovery for mental injury in negligence depends on the claimant satisfying the ordinary duty of care analysis, which is whether: the defendant owed the claimant a duty of care to avoid the kind of loss alleged; the defendant breached that duty by failing to observe the applicable standard of care; the claimant sustained damage; and that damage was caused, in fact and in law, by the defendant’s breach: at para. 13.
[23] At para. 37 of Saadati, Brown J. set out the following propositions relating to what constitutes a compensable mental injury. Citing Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, he stated that “mental injury is not proven by the existence of mere psychological upset” (emphasis in original). Relying again on Mustapha, he said claimants must show that the disturbance suffered is “serious and prolonged and rises above the ordinary annoyances, anxieties and fears that come with living in civil society”. He concluded by stating that “the claimant’s task in establishing a mental injury is to show the requisite degree of disturbance”.
[24] Justice Brown went on, at para. 38 of Saadati, to explain that when determining whether the claimant has succeeded in showing a mental injury, it will be important for the trier of fact to consider:[H]ow seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment and the nature and effect of any treatment. To the extent that claimants do not adduce relevant expert evidence to assist triers of fact in applying these and any other relevant considerations, they run a risk of being found to have fallen short. … To be clear, however: while relevant expert evidence will often be helpful in determining whether the claimant has proven a mental injury, it is not required as a matter of law. Where a psychiatric diagnosis is unavailable, it remains open to a trier of fact to find on other evidence adduced by the claimant that he or she has proven on a balance of probabilities the occurrence of mental injury. [Emphasis added; citations omitted.] ....
Analysis
[27] I accept the Appellants’ submission on this issue. In my view, the trial judge erred in law by failing to recognize that Saadati requires that certain considerations be brought to bear in determining whether the claimant has succeeded in showing a mental injury. In failing to take into account those relevant legal considerations, the trial judge erred in law: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 27.
[28] The trial judge’s statement of the law is found in paras. 12-13 of the Second Decision. Based on Saadati, he set out the following legal principles:1. Recovery for mental injury in negligence requires that the claimant satisfy the ordinary duty of care analysis (duty, breach of the duty, and whether the claimant sustained damage caused by the breach);
2. Liability for mental injury must be confined to claims which satisfy the proximity analysis within the duty of care framework and the remoteness of the inquiry;
3. The disturbance of a mental injury must be shown to be serious and prolonged, and rise above ordinary annoyances, anxieties, and fears;
4. While expert evidence can assist in determining whether a mental injury has been shown, it remains open to the court, on other evidence adduced, to find that the claimant has proven, on the balance of probabilities, the occurrence of a mental injury. [29] The trial judge made no error in his recitation of these legal principles in Saadati. However, it is not a complete statement of the relevant legal principles established by that case; it fails to reflect the Supreme Court’s instructions to triers of fact, at para. 38, on how to determine whether the claimant has succeeded in proving mental injury.
[30] As noted above, Brown J. makes it clear at para. 37 of Saadati that a mental injury is not proven by the existence of mere psychological upset. Claimants must show that the disturbance they suffered is serious and prolonged and rises above the ordinary annoyances, anxieties, and fears that come with living in civil society. He concludes para. 37 by observing that the claimant’s ultimate task is “to show the requisite degree of disturbance”.
[31] In para. 38, Brown J. describes how claimants are to show that requisite level of disturbance. He explains that in assessing whether the claimant has succeeded in showing a mental injury, it will often be important for the trier of fact to consider “how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment and the nature and effect of any treatment” (the “Saadati factors”). Later in para. 38, Brown J. describes the Saadati factors as “relevant considerations” for the trier of fact.
[32] In my view, paras. 37 and 38 together are a clear direction that, in distinguishing mental injury from psychological upset, the trier of fact must consider not only the claimant’s psychological upset but also how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment, and the nature and effect of any treatment sought and taken in relation to the psychological upset.
[33] In short, Saadati instructs that it is insufficient for the trier of fact to find evidence of psychological upset, such as feelings of anger and frustration: the inquiry must include a consideration of the level of impairment that the claimant’s particular feelings represent.
[34] In concluding that Mr. Bothwell had succeeded in showing a mental injury, the trial judge failed to consider the degree of disturbance Mr. Bothwell experienced as a result of his psychological upset. That is, he failed to consider what impact Mr. Bothwell’s continuing anger and frustration had on his cognitive functions and participation in daily activities. He also failed to consider the absence of evidence that Mr. Bothwell sought treatment for those feelings. These failures caused the trial judge to fail to determine whether Mr. Bothwell’s continuing psychological upset met the requisite degree of disturbance to become a compensable mental injury.
[35] In sum, the trial judge’s failure to advert to or consider the Saadati factors was an error in law. Consequently, his determination that Mr. Bothwell’s psychological upset rose to the level of mental injury is owed no deference by this court.
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Analysis
[38] As I explained above, the trial judge erred in law by failing to take into account the Saadati factors when determining whether Mr. Bothwell suffered a mental injury. Because he erred in law, his determination of that issue is owed no deference. Thus, it falls to this court to determine whether Mr. Bothwell’s feelings meet the legal requirements for a mental injury. In my view, the evidence in this case falls short of establishing that Mr. Bothwell’s feelings of anger and frustration are sufficient to support a finding of mental injury.
[39] I begin by noting that I fully accept all of the trial judge’s findings relating to Mr. Bothwell’s testimony. These findings include that Mr. Bothwell was sincere, his testimony was reliable, he was not prone to exaggeration, and he was sensible and fair.
[40] On my review of the record, however, there was no evidence to show that Mr. Bothwell’s continuing feelings of anger and frustration arising from the medication error led to impairment in his cognitive functions or participation in daily life. He has continued his work as a paramedic and remains a committed father and husband. Nor was there any evidence that Mr. Bothwell pursued any form of treatment to deal with his emotional reaction to the medication error. The only evidence on this issue came from the Respondents – and their testimony was devoid of evidence of impairment arising from Mr. Bothwell’s feelings of anger and frustration.
[41] The absence of evidence of impairment in this case stands in marked contrast to the evidence in Saadati. In Saadati, other family members and friends testified about how Mr. Saadati had changed from a funny, energetic, outgoing person into a sullen person with mood swings. They further testified about how his personality change had caused his close personal relationships with family and friends to deteriorate. He also suffered from headaches.
[42] While Saadati makes it clear that expert medical evidence is not necessary to prove a mental injury, it also makes clear that where claimants do not adduce relevant expert evidence to assist triers of fact in considering the Saadati factors and other relevant considerations, “they run a risk of being found to have fallen short”: at para. 38. Here, in addition to an absence of evidence of impaired cognitive functions or participation in daily activities, there was no evidence that Mr. Bothwell had a physical manifestation of his psychological upset or sought medical assistance to deal with his persistent feelings of anger and frustration due to the maladministration of Heparin.
[43] The absence of evidence of impairment distinguishes this case from Ontario cases in which persistent feelings were an element that assisted in proving mental injury. For example, in Barker v. Barker, 2020 ONSC 3746, rev’d on other grounds, 2022 ONCA 567, 162 O.R. (3d) 337, leave to appeal refused, [2022] S.C.C.A. No. 368, a group of plaintiffs sued Ontario for, among other things, breach of fiduciary duty stemming from its administration of the Oak Ridge Division of the Mental Health Centre in Penetanguishene (“Oak Ridge”). Each plaintiff was involuntarily admitted to Oak Ridge between 1966 and 1983 and subjected to various programs, including the Motivation, Attitude, Participation Program (the “MAPP”). The MAPP was a strict physical disciplinary program that was implemented by other psychiatric patients. The trial judge found that one of the plaintiffs who was subject to the MAPP, Maurice Desrochers, developed stress that “either caused or greatly exacerbated his gastrointestinal problems” and developed “a lingering sense of anger that, according to his sister, stayed with him the rest of his days”: at para. 432. Some of the medical experts acknowledged that a person with Mr. Desrochers’ gastric problems should never have been exposed to the MAPP and that he would have been “especially prone to suffering great psychic pain”: at para. 430. In his reasons on damages, the trial judge held that Mr. Desrochers’ stress and lingering anger were sufficiently severe to constitute a compensable mental injury under Saadati: see 2021 ONSC 158, 68 E.T.R. (4th) 1, at paras. 339‑345.
[44] In Johnson v. Cline, 2017 ONSC 3916, aff’d on other grounds, 2019 ONCA 188, leave to appeal refused, [2019] S.C.C.A. No. 131, the plaintiffs in the counterclaim successfully sued their neighbour for nuisance that lasted for six years. Both plaintiffs testified as to suffering from depression and anxiety as a result of the persistent hostility demonstrated by the defendant. They further adduced clinical records from their family physician which showed that both had been prescribed medication to treat their depression and anxiety arising from the situation with their neighbour. Noting that expert evidence was not required nor a diagnosed psychiatric condition need be proven, the trial judge was satisfied that the harm experienced by the plaintiffs was a mental injury that met the Saadati threshold: see paras. 120-124.
[45] Unlike this case, the plaintiffs in both Barker and Cline adduced evidence of impairment within the meaning of the Saadati factors. In Barker, the plaintiff’s sister indicated that the plaintiff experienced life-long anger after experiencing the MAPP that was not limited by time or place. This anger was coupled with stress that caused or exacerbated ongoing gastrointestinal issues, an impairment of his participation in daily activities. In Cline, there was medical evidence about the nature of the treatment the plaintiffs received for depression and anxiety associated with the defendant’s conduct.
[46] I wish in no way to trivialise the seriousness of the medication incident or the Respondents’ reactions to it. They were expecting a new baby when they learned of the maladministration of Heparin, which they reasonably understood could have led to Mr. Bothwell’s death. However, respectfully, I do not accept the Respondents’ assertion that this case is analogous to ones that involve “a near‑death experience”.
[47] First, I begin by noting that it is not clear that Mr. Bothwell’s fear that he might die as a result of the medication incident was a near‑death experience. In this regard, it is important to bear in mind the trial judge’s finding that none of Mr. Bothwell’s ensuing surgeries and recovery arose from the erroneous administration of medication.
[48] Second, in any event, the question is not whether Mr. Bothwell suffered a near‑death experience but, rather, whether his persistent feelings of anger and frustration following the medication incident meet the requisite “degree of disturbance” to be a compensable mental injury. While the gravity of the experience may be a relevant consideration in this inquiry, the other Saadati factors must still be considered and applied to the evidence adduced by the plaintiff.
[49] The “near-death” cases relied on by the Respondents are distinguishable from the present case because, in those cases, there was evidence of impairment. In Weafer v. Vancouver Coastal Health Authority et al., 2007 BCSC 481, the trial judge was satisfied that the negligent administration of Ketamine caused the plaintiff to suffer “psychological trauma” and a “great degree of stress and anxiety”. He found that the plaintiff’s depression became “more severe and persistent” after the incident and that the prescribed antidepressant medication he took caused him to experience side effects, including “headaches, fatigue and memory problems”: see paras. 95, 131-133.
[50] Similarly, in Owen v. Bains, 2020 ONSC 3958, aff’d 2021 ONSC 6666 (Div. Ct.), while the trial judge did not find the defendant liable for negligence, he had a medical expert’s testimony that, since his “near-death” experience, the plaintiff had developed symptoms that she would diagnose as Adjustive Disorder with Anxiety and Major Depressive Disorder: see paras. 32, 38-39.
[51] In conclusion, there is no question that the medication error breached the standard of care that the Appellants owed Mr. Bothwell and was a deeply disturbing event for him and his wife. Mr. Bothwell’s persisting feelings of anger and frustration about the incident are understandable. However, feelings of anger and frustration, without more, is evidence of psychological upset, not injury. Based on the principles in Saadati, in the absence of evidence of impairment of cognitive functioning, interference with activities of daily living, or treatment for emotional symptoms, the claim for mental injury cannot succeed. . Louison Automotive Inc. v. Richards
In Louison Automotive Inc. v. Richards (Div Court, 2023) the Divisional Court considered mental stress damages in a contract lawsuit context:[21] The trial judge also awarded $1,000 for mental stress, which the appellant submits was a palpable and overriding error. On this issue I agree with the appellant. Such awards are rare and must be supported by evidence. There was no evidence of the kind found in the case relied upon by the trial judge, Asselin v. Norm’s Northern Auto Body and Paint, 2014 CanLII 60376 (Sm. Cl. Ct.), in which medical evidence was presented. To the extent the trial judge grounded his award for mental stress in “the frustration involved in dealing with a vehicle for a year-and-a-half that was a lemon”, this is contrary to the holding in Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30, [2006] 2 S.C.R. 3, at para. 45. The damages should therefore be reduced accordingly.
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