Date: Tue, 27 May 2008 00:50

From: Lewis Klar

Subject: The refreshing SCC

The result in Mustapha was not surprising; the brevity was admirable.

But, I agree with Vaughan that you can only condense so much. My big concern is this. The Court dismissed the distinction between reasonably foreseeable as "probable" and reasonably foreseeable as "possible" since these terms are "misleading". It then concluded that in order to be recoverable, mental illness must be reasonably foreseeable to a person of ordinary fortitude. But reasonably foreseeable as probable or reasonably foreseeable as possible? It must be a "real risk" and not "far-fetched". How is that determined?

In short, you cannot avoid the issue of what test constitutes the standard of reasonable foresight. The evidence failed to establish that it was reasonably foreseeable that a person of ordinary fortitude would have suffered Mr. Mustapha's "highly unusual" reaction. How high is high? What if the evidence established that some people, say 10% of the population, would have become as severely upset as Mustapha. Would that have been enough?

I do not know what to make of this judgment.

Lewis Klar

>>> Vaughan Black 5/23/2008 6:45 AM >>>

I agree with Harold Luntz that there is something to be said for the SCC's brevity in Mustapha, and in several other of their recent decisions in the private law area. But I think they may be carrying it a bit too far. There's only so much that you can condense before some inevitable distortion sets in.

Consider the requirement of "recognized psychiatric illness". Before Mustapha, I would have thought that one of the requirements for stand-alone psychiatric injury in Canadian law was that the plaintiff's injury had to be a recognized psychiatric illness. It wasn't sufficient for a plaintiff to say "I have the blues"; rather, one required a psychiatrist to label the injury as something found in DSM-IV. The SCC in Mustapha says nothing about this; it only says that, to amount to an injury in law, psychiatric injury must be "serious and prolonged" as opposed to "minor and transient". What is the status of the "recognized psychiatric illness" requirement in Canadian law post-Mustapha? Would it have killed the SCC to have lengthened their judgment by adding a sentence or two about the status of the "recognized psychiatric injury" requirement.

This isn't the only instance of new uncertainties raised by the SCC's efforts in Mustapha (and elsewhere) to write judgments that read like headnotes.

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