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March 14, 2011

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Law Times • march 14, 2011 An online resource 1.800.263.3269 Focus On LITIGATION Did Mustapha alter rules for psychological harm? Threshold issue surfaces in Ontario Court of Appeal's decision in Healey BY JULIUS MELNITZER For Law Times D id the Supreme Court of Canada's 2008 de- cision in Mustapha v. Culligan of Canada Ltd. change the threshold for compensable psychological injury unaccom- panied by physical injury? Th at was the question fac- ing a fi ve-member panel of the Ontario Court of Appeal in Healey v. Lakeridge Health Corp. And what was the court's answer? No, it didn't, but that doesn't foreclose the possibility of change in the future on the proper facts, of course. Both Barry Glaspell, a mem- ber of the defence bar at Borden Ladner Gervais LLP's Toronto offi ce, and Jonathan Ptak, who with colleague Kirk Baert of Toronto's Koskie Minsky LLP represented the plaintiff s in the Healey class action, agree that the Healey court unanimously ruled that Mustapha didn't change the traditional thresh- old that required that a psycho- logical injury amount to a "rec- ognizable psychiatric illness" in order to be compensable. Glaspell, however, maintains that Healey clarifi es the law. "Th e bar remains where it was despite the plaintiff s' lawyers' at- tempts to move it," he says. But Ptak says the door is more open than ever to mov- ing the threshold even if the plaintiff s weren't successful in doing so in Healey. "What we have in Healey is judicial recognition of the dissenting views about the ef- fect of Mustapha and about the continuing appropriateness of the recognizable psychiatric ill- ness test," he says. But the divergence itself ul- timately leaves personal injury lawyers in both the plaintiff s' and defence bar unable to come up for air on the issue. After all, the nature of the question may have changed somewhat, but the uncertainty, for all practical purposes, is no less pervasive. Healey arose after incidents at Lakeridge Health in which large numbers of people were exposed to two patients with tuberculosis. None of the ap- pellants in Healey tested posi- tive for tuberculosis but they al- leged that notices advising them that they should get tested for the illness caused them mental anxiety, suff ering, and distress that they variously described as "depression, fear, shock, anxi- ety, anger, frustration, shame, outrage, distress, and sleep- lessness." Many of them, fearing for the health and safety of friends and family, temporar- ily disrupted their social lives. Several had pre-existing psy- chological complaints that the tuberculosis notifi cation allegedly exacerbated. But plaintiff s' counsel made an important conces- sion. "Th ey admit that the harm suff ered fell short of a recognizable psychiatric ill- ness," wrote Justice Robert Sharpe, who authored the court's reasons. "Th e cen- tral issue on this appeal is whether the harm they suf- fered gives rise to a claim for legally compensable damages in a negligence action." Sharpe then embarked on an extensive analysis of Mustapha, a case in which the plaintiff suff ered severe mental distress after noticing a fl y in a replacement bottle of drinking water supplied by Culligan. Th e Supreme Court ruled that Waddah Mustapha's "un- usual" or "extreme" reaction to Culligan's negligence, while "imaginable," wasn't reason- ably foreseeable and therefore too remote to attract an award of damages. But in the course of her judg- ment for a unanimous court, Chief Justice Beverley McLach- lin opined that "nothing will be gained by treating [physical and psychiatric injury] as diff erent 'kinds' of personal injury, so as to require the application of dif- ferent tests in law." Th e appropriate distinction, rather, was between upset and injury. "Personal injury at law con- notes serious trauma or illness," she wrote. "Th e law does not recognize upset, disgust, anxi- ety, agitation or other mental states that fall short of injury." In other words, minor and transient upsets didn't consti- tute injury and therefore didn't amount to damage. But as Sharpe saw it, McLach- lin "was simply trying to explain the levels to which psychologi- cal injury had to rise to attract legal compensation" and wasn't aiming to change the standard to a more fl exible one. "As the appellants essentially rest their case on the proposi- tion that Mustapha changed the law and as that argument fails, I would dismiss the appeal on Untitled-1 1www.lawtimesnews.com this ground," he wrote. Had Sharpe stopped at that point, Healey would probably have been less controversial. But he chose to elaborate. Noting the plaintiff s didn't 'The bar remains where it was despite the plaintiffs' lawyers' attempts to move it,' says Barry Glaspell. dispute the need for some sort of threshold, he added: "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. Th e precise manner in which the threshold is de- fi ned or identifi ed is a matter of legitimate debate and the 'recognizable psychiatric ill- ness' test has attracted criti- cism from the authors I have already cited as being unduly rigid and dependent upon shifting medical opinion." However, even if Mus- tapha did change the test to a threshold more fl exible than recognizable psychiatric ill- ness, the injuries before the court in Healey weren't com- pensable because the harm wasn't serious and prolonged and didn't rise above the or- dinary annoyances, anxieties, and fears that people living in society routinely accept. Th e upshot was that the case "does not provide a proper factual foundation for any reconsideration of the traditional 'recognizable psychiatric illness' test." So the question remains as to what would prompt such a con- sideration. It's a question no less confounding than whether Mus- tapha changed the law. Congratulations to the winners of the 2011 Harold G. Fox IP Moot Dimock Stratton, as founding sponsor, is proud to announce the winners of Canada's intellectual property law moot, which was held on February 18th and 19th Harold G. Fox Cup for Best Mooting Team Devin Doyle and Kim Lawton, Osgoode Hall Law School Donald F. Sim Award for Best Oral Advocate Kayla Kwinter, Queen's University Gordon F. Henderson Award for Best Factum Writers Susanne Coles and Edwin Mok, University of Ottawa Thanks to all the participants, panellists and sponsors. Visit ipmootcanada.ca for more information. Dimock Stratton llp experience. results. 20 Queen W. 32nd fl, Toronto | 416.971.7202 | dimock.com 3/4/11 10:00:04 AM in Toronto. All participants showed strong advocacy skills in handling a challenging problem in the area of trademark litigation. Congratulations! Dimock Stratton LLP Oral Advocacy Award Vanessa Park-Thompson, University of Toronto The winner of this award is entered into the 2012 Oxford International IP Moot PAGE 9

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