Date: Fri, 14 Jul 2006 18:08:12 -0400

From: David Cheifetz

Subject: A Fly in the Bottle This Time

Ah ... Western Ontario, where men are men and some hair stylists are, well, sensitive.

Apparently, there are some Ontario residents who, on account of cultural sensitivities or other (no doubt) Ontario-related failing, are predisposed to compensable problems that our hardier residents are not. The trial judge wrote

[211] ... the background of Mr. Mustapha in the Middle East, where the devotion to and concern for the family is at a higher level than is found in North America, and the higher level of cleanliness and avoidance of insects practiced by this family than is usual, including taking food to and from an outdoor barbecue in covered containers, and covering the depressed top of the Culligan water dispenser with a plate, to preserve cleanliness when the bottle was removed. These things, in my view predisposed Mr. Mustapha for the reaction that occurred.

Some people who have been to the wilder parts of Toronto (say, northern Rosedale or Forest Hill); or, perhaps, across the river from Windsor to Detroit; let alone the Middle East and elsewhere, might wonder.

Once upon a time, for another place, I wrote a doggerel summary of the case (apologies to Robert W. Service):

There are strange things done in the Canadian sun
By the folk who make our laws;
The judicial trails have their secret tales
That would make you more than pause.
The Canadian courts have seen strange torts
But as strange as I ever did see
Was the day in '05, when a fly that had died,
Won a lawyer a very nice fee.

It's just past 6 p.m. on a Friday, here, and its pushing 31 Celsius outside, so levity wins over wit or wisdom.

Cheers,

-----Original Message-----
From: Jason Neyers
Sent: July 14, 2006 4:24 PM
To: Lewis KLAR
Subject: Re: ODG: A Fly in the Bottle This Time

Dear Colleagues:

I strongly disagree with Lewis. I do not think that the case is correctly decided as a matter of law: It is not reasonably foreseeable that a person of ordinary fortitude would suffer a psychiatric illness as a result of the facts that occurred. In order for the thin skull rule to kick-in I must first prove something that would be considered a wrong to a reasonable/typical person, if I prove that then the extent of the injury is irrelevant (Deyong). As such thin skull is irrelevant to Mustapha.

I would be shocked if this is not overturned on appeal on the tort issue.

Whether or not there might be liability in contract is another matter and part of the problem with the judgment, as I remember it, is that the trial judge never truly distinguishes between the two types of liability.

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