Date: Sat, 15 Jul 2006 11:37:29 -0400

From: David Cheifetz

Subject: A Fly in the Bottle This Time

John, Lewis, Jason:

My apologies for the length of this reply. What it amounts to is this. "The evidence described in the reasons doesn't support the result. The judge probably got the law he mentioned right. The right facts could support the result in the case; however, the right facts weren't found based on the evidence described in the reasons. So, the result is wrong for that reason."

Jason wrote: "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." The trial judge claimed the test he applied was "reasonable foreseeability of psychiatric illness". In fairness to the judge, I think para 226 has to be understood to mean that he understood the law and applied the right test. It's just that he didn't apply it properly.

The trial judge, in my view, made findings of fact not supported by the evidence - at least as it's set out in the reasons. In addition, those findings aren't sufficient for the result. What's missing is, at least, a finding that Culligan knew or ought to have known of Mustapha's sensitivities. If it’s the latter, we'd also need an explanation of why Culligan ought to have known.

What the judge did was state that, on the particular facts of the case, Mustapha's sensitivity was objectively foreseeable. Essentially, what he seems to have tried to do is to make findings of fact which would took the case out of the common person's "reasonable fortitude and robustness" requirement by fixing Culligan with some level of increased knowledge of the foibles of customers in general, Mustapha in particular. However, if the evidence doesn't support those findings, that should be enough to require the judgment be set aside.

I suspect it wasn't there: see para [3] which I've set out below. The trial judge is quite experienced. Forgetting to set out that sort of evidence isn't the sort of error he's likely to have made in a case like this, particularly in reasons that are 241 paragraphs long; even more so given the length to which he went to set out Mustapha's particular sensitivities.

Specifically, the trial judge asserted that he applied the test of reasonable foreseeability of psychological injury to conclude that the depression sustained by Mustapha was reasonably foreseeable to Culligan because (1) it promised absolutely pure water, not 99% pure water, to Mustapha (2) he was sensitive person and (3) and he relied on the promise of pure water as the reason for using Culligan water for 15 years. However, the trial judge didn't explain why it was that Culligan knew or ought to have known that Mustapha had any particular sensitivities or even the sensitivities that led to his reaction. Absent the appropriate evidence and a finding that Culligan knew or ought to have known of Mustapha's sensitivity, how can it be said that it was reasonably (i.e. objectively) foreseeable to Culligan that Mustapha would react as he did when, as the judge essentially conceded [para 227 and the structure of the reasons] the run-of-the-mill person wouldn't react that way? The trial judge doesn't explain why it was that Culligan knew or should have known.

Mustapha's sensitivities are not, in my view, something that one could say Culligan ought to have known about merely from the fact that Mustapha was a long time client of Culligan.

I'm going to assume that, in today's Ontario, it's correct (even politically correct) to conclude that law's reasonable person would not assume that a person of "reasonable fortitude and robustness" would have Mustapha's sensitivities; even if the reasonable person knew that Mustapha was an "urban, and urbane, hair stylist" of a particular ethnic background. Indeed, it struck me when I first read the case that it would be politically incorrect to assume that he had those sensitivities - outside of a TV sitcom, of course. Imagine the probable judicial reaction if Culligan's counsel had put his case explicitly this way (no doubt he thought about it): "Your Honour, Culligan regrets what happened to Mr. Mustapha; however, he was not a person of reasonable fortitude and robustness but rather a too sensitive [ethnic] hairdresser. Therefore, his case must fail." Culligan's lawyer wouldn't have to add the implicit "we all know how histrionic those sorts of people can be". It's almost as if the trial judge went to extreme lengths to avoid being accused of harbouring stereotypes, even against hair dressers. Look at para 226.

I've set out paras 3, 221 and 226 and a portion of 231. The conclusion is in the 2nd last sentence of para 226 which I've underlined. It's a non-sequitur. The underlining in 231 is mine, too.

The logical structure of the argument - which isn't valid logic - is: (1) Culligan represented to its customers that its water was absolutely pure - purer than city water (2) Mustapha relied on this representation and so used only Culligan water for consumption (3) therefore it is objectively foreseeable that unpure water would cause customers such as Mustapha to suffer nervous shock.

Premises (1) and (2) do not entail the conclusion in (3). That's a very basic mistake. What's missing is the relevant finding regarding Culligan's knowledge of Mustapha's sensitivities.

Paras [3] and [221] are all there is about what it was that Culligan told Mustapha and what it knew about him. There's no evidence that Culligan knew or ought to have known that Mustapha had the particular sensitivities which the judge found predisposed Mustapha to his reaction. We're not told why it is that Culligan ought to have foreseen etc. If there was such evidence, it isn't mentioned.

[3] Mr. Mustapha told the court that after he first opened a salon in 1986, a representative of Culligan called on him and represented to him at length how pure and healthy Culligan water was, including how it would benefit pregnant women and children, and how much better it was for someone than city water. He was convinced of the benefits of using Culligan water, and installed a dispenser for it in his salon and a Culligan osmosis system in the family home he then had. In 1999 he and his wife moved to their present home and he installed a Culligan water dispenser there. The evidence was that he and his wife used nothing but Culligan water for personal consumption and for consumption by their children. As regular customers, they had a running account with Culligan, and a Culligan deliveryman would regularly deliver two jugs of Culligan water to their home and pick up the empty jugs.

[221] The company has led evidence that this has never happened before at this bottling plant, which in fact has won awards, and may not have happened before anywhere in Canada. That may well be, and I am prepared to accept that the odds against this happening are very high. However, it should not have happened at all. The basis for the company’s marketing was the absolute purity of its product. There was no representation that the product was "99% pure" as I seem to recall from ads for soap many years ago, which left some wiggle room for impurities. This product was held out as being absolutely pure. The evidence was clear that the Mustaphas purchased this water for many years and used it based on the representations that had been made. Further, the company operated under the regulatory provisions of the Food and Drug Act, which prohibits the sale of an article of food (that by definition includes bottled water) which contains “any filthy, putrid, disgusting, rotten, decomposed or diseased animal or vegetable substance” or was “manufactured, prepared, preserved, packaged or stored under unsanitary conditions”. The prohibition is not against knowingly selling, or negligently selling – it is an outright prohibition against selling. I have no doubt that dead flies, one of which appeared to be partially decomposed, would fit within the list of prohibited contaminants, I would think that the plant and the bottling system within it would generally be regarded as sanitary, but on the occasion that the fly or flies got into this bottle, it was obviously unsanitary.

[226] Here, we are not dealing with South Yorkshire Police constables. We are dealing with an urban, and urbane, hair stylist. Moreover, we are dealing with a person with the sensitivities that, in my view, would make him what he was – a good and faithful customer of the Culligan company for some 15 years, buying and using their water both at his home and at his business. He was very concerned over the purity and healthfulness of the water that he and his family consumed, and was convinced, by the Culligan representatives, that their water was better, purer and safer than the water supplied by the city public utility system. Given that, it in my view was clearly foreseeable to Culligan that if it supplied a water bottle with dead flies floating around in it, Mr. Mustapha, and other customers like him, would suffer "some degree" of nervous shock. In my view, in the particular circumstances of this case, the foreseeability test has been met.

[231] ... I naturally wondered what Mr. Mustapha’s reaction would have been had he found a fly in his soup at dinner at a restaurant, rather than a fly in the Culligan bottle at home. If there was a risk that some other incident could have triggered a like reaction, then I would have to make an allowance for that contingency. A defendant has to put the plaintiff back to his "original position", but he need not put the plaintiff to a position better than that. Upon consideration, I conclude that the factor that limits the risk of harm from other incidents is the faith and trust that Mr. Mustapha had put in the purity, cleanliness and wholesomeness of Culligan water for himself and his family for 15 or so years. His unshaken evidence was that a good part of his reaction was to finding this bottle was not pure, and if this one wasn’t, perhaps the others through the years were not either. He spoke of his obsessive thoughts, not only of this particular fly being on animal feces, etc. before being in his bottle of water, but of his daughter’s formula having been made with Culligan water and of his wife drinking Culligan water for the health of herself and her children. Although there was evidence of the studious care taken in the Mustapha household for general cleanliness, there was no evidence of any other product being acquired for reasons of health in which the family reposed trust and faith, which could have been contaminated.

In passing, it's curious that we're not told - if we were I missed it and I'm not inclined to reread the reasons looking for a clue - whether Mustapha ever drank tap water at any place other than his home or salons after he became a Culligan customer; or what he did when he travelled; or generally what he did when he was thirsty and bottled Culligan water wasn't available; or even what he used did to brush his teeth at home or when travelling. If he was, the answer isn't mentioned. I think we have to assume that at least one of those questions would have elicited an admission that he used tap whatever if he had to, or his general credibility would have been put in doubt. I suppose we have to assume the trial judge would have handled the "yes" answer as he did the other examples in para 231, had he mentioned the "yes" answer.

Another question is if the foreseeability finding and the accepted medical evidence required the legal causation finding. Once the trial judge accepted Mustapha's doctors' evidence that one of the medically relevant factors that triggered Mustapha's depression and other psychological injury was seeing the fly, did that mean he had to conclude that it was enough to be a factual cause for law? The trial judge wrote:

[223] … Here, as the fly in the bottle was the triggering factor, there is no doubt that it materially contributed to the plaintiff’s problems. Indeed, although there were pre-existing stressors, and certainly subsequent stressors, it could well be argued that "but for" the fly in the bottle, and the directly resulting thoughts by Mr. Mustapha of possible impurities in all of the bottles of water previously consumed, and therefore possible damage to the health of his family members, his subsequent psychological problems would not have occurred. Certainly the contribution of the fly in the bottle was well outside of the de minimis range.

That, if valid, satisfies the factual cause component. But the trial judge either forgot the proximate cause component; or implicitly decided that the foreseeability conclusion sufficiently answered the proximate cause question. But, did it? Or, at least, did it have to?

Or maybe the real question is whether the case should have failed at the first-stage duty-analysis level, because of the failure to find that Culligan knew or ought to have known that Mustapha had these particular sensitivities. If Culligan didn't know, and wasn't deemed to know, then how could Culligan have been Mustapha's neighbour?

David

-----Original Message-----
From: Lewis KLAR
Sent: July 14, 2006 8:33 PM
Subject: Re: RE: ODG: 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?

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