Dear Colleagues:

For those of you wondering what the Supreme Court of Canada’s decision in Mustapha actually decided (since the laconic decision was about as clear as mud), might I suggest that the recent Ontario Court of Appeal decision in Healey v. Lakeridge Health Corporation, 2011 ONCA 55 (http://www.ontariocourts.on.ca/decisions/2011/2011ONCA0055.pdf) by Sharpe JA.  In Healy, a five-member panel on the Court decided:

1.     That issues relating to Psychiatric Illness are indeed to be dealt with at the remoteness and damage stage of the negligence inquiry and not at the duty stage. As Sharpe JA stated at [34]:

While some of the earlier cases may have treated the issue of whether damages for psychological injury may be recovered as involving the duty of care, as I read Mustapha ..., whether the plaintiff has sustained compensable damages is a separate and distinct issue not to be conflated with the question of whether a duty of care exists. In Mustapha, the plaintiff found dead flies in an unopened water bottle and became very upset by the idea that he and his family had been consuming tainted water. He suffered no physical injury.

2.     That the type of damage that had to be suffered and reasonably foreseen was a recognizable psychiatric illness and that something that was only “serious and prolonged” did not count. As Sharpe JA stated at [61]:

When the passage the appellants rely on from Mustapha is read in the light of this body of jurisprudence and scholarly writing, I find it impossible to imagine that McLachlin C.J. could have intended her brief description of the type of psychological injuries that qualify as being compensable to change a well-established, though at times contested, rule. She explicitly stated, at para. 9, that she did “not purport to define compensable injury exhaustively”. As I read Mustapha, McLachlin C.J. was simply trying to explain in non-technical language the level to which psychological injury had to rise to be eligible for legal compensation. Had she intended to make a fundamental change to the law, she almost certainly would have discussed the authorities and the policy issues at stake in a more extensive manner.

 The court did, however, leave open the possibility that this standard might be relaxed in the future (at [66]):

I do not wish to be taken as saying the possibility of any change in the formulation of the test should be foreclosed once and for all. The precise manner in which the threshold is defined or identified is a matter of legitimate debate and the “recognizable psychiatric illness” test has attracted criticism from the authors I have already cited as being unduly rigid and dependent upon shifting medical opinion. However, as the nature of the appellants‟ complaints in this case falls below what I would regard as a minimum acceptable threshold for compensable

 Happy Reading,

-- 
Jason Neyers
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435