Date: Fri, 14 Jul 2006 18:33:05 -0600

From: Lewis Klar

Subject: A Fly in the Bottle This Time

Hi Jason:

You raise a different error and I agree that if the trial judge did not apply the test of reasonable foreseeability of psychological injury as the test, it would be an error of law. I have to take a look again as to whether that was the test he applied or not.

But assuming that the trial judge did apply that test and came to the conclusion that psychological injury was reasonably foreseeable, I take it that you would agree that that would be a finding of fact, not reversible on a simple correctness standard.

Right?

Lewis

>>> Jason Neyers 07/14/06 5:28 PM >>>

Dear Lewis:

The point I was trying to make was that the trial judge applied the wrong test, the test is not foreseeability of some adverse reaction, but rather reasonable foreseeability of psychiatric illness, a point that was made clear by the Ontario Court of Appeal in Vanek. That is the error of law.

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