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June 12, 2017

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Law Times • June 12, 2017 Page 13 www.lawtimesnews.com More tort claims for mental injury BY SHANNON KARI For Law Times T here could be an in- crease in future tort claims for mental inju- ry as a result of a recent Supreme Court of Canada de- cision that found a recognized psychiatric diagnosis is not nec- essary to prove damages. The unanimous decision in Saadati v. Moorhead stated that what matters is "substance" and "not the label" in explaining that mental injuries suffered by a victim are not restricted only to those recognized in publica- tions such as the Diagnostic and Statistical Manual of Mental Disorders. "The stigma faced by people with mental illness, including that caused by mental injury, is notorious and often unjustly and unnecessarily impeding their participating, so far as pos- sible, in civil society. While tort law does not exist to abolish misguided prejudic- es, it should not seek to perpetu- ate them," wrote Justice Russell Brown for the court. The Supreme Court stated that a claimant must still satisfy the normal criteria for any suc- cessful action in negligence. Mental injuries must be shown to be "serious and pro- longed" and not "mere psycho- logical upset," said the court. However, while expert medi- cal evidence may be helpful to a plaintiff 's case, it is not required as a matter of law. The decision in Saadati is "a big deal," says Jonathan Rosen- stein, who heads Rosenstein Law in Toronto. "Until now, the threshold was that you needed a [DSM] diagnosis" to succeed on a men- tal injury claim for damages, ex- plains Rosenstein, a civil litiga- tion specialist who also teaches advanced civil procedure at the University of Toronto law school. "Over the next several months, you will likely see law- yers plead claims that no one thought were permissible be- fore," he says. Claire Wilkinson, the new president of the Ontario Trial Lawyers Association, says the ruling is positive from an access to justice perspective. "It could be of assistance to people who have suffered men- tal injuries but cannot afford to have a psychiatrist come to court and testify, says Wilkin- son, a lawyer at Martin & Hill- yer in Burlington, Ont. The full impact of the rul- ing will be clearer after lower courts have interpreted what the threshold is for plaintiffs in this area who do not have a recognized condition, says Mi- chael Teitelbaum, who heads the insurance coverage counsel group at Hughes Amys LLP in Toronto. "Generally speaking, though, it does open up the field for plaintiffs to try to say they have a psychological injury without having a doctor to give evi- dence," says Teitelbaum. "The court is saying we can rely on friends and family, sub- ject to the defence countering it," he adds. The Supreme Court ruling in Saadati overturned the B.C. Court of Appeal and restored the decision of the trial judge in litigation that stemmed from a 2005 automobile accident. The plaintiff appeared to be uninjured physically, but friends and family testified that after the incident he became sullen, prone to mood swings and personal relationships dete- riorated. The trial judge awarded $100,000 in damages. The common law has long regarded negligently caused mental injury with "suspicion and sometimes outright hostili- ty," noted Brown in the Supreme Court judgment. Trial judges, though, should not be required to be "down- loading the task of assessing le- gally recoverable mental injury" to psychiatric manuals, he added. The Insurance Bureau of Canada, which was an inter- vener in Saadati, warned that if expert medical evidence is not required, this could lead to more litigation and higher pre- miums. "Courts will be f looded with additional claims for this novel method of awarding dam- ages," it suggested in written ar- guments. The Supreme Court dis- missed these arguments and suggested they are based on "dubious perceptions" about mental illness. An increase in litigation as a result of this ruling is not neces- sarily a bad thing, says Rosen- stein, because it ref lects chang- ing societal views in this area. "We've stopped telling peo- ple with mental injuries to suck it up. In 2017, we are not saying, for policy reasons, sorry, we cannot help you," says Rosen- stein. Wilkinson, who special- izes in personal injury cases and representing victims of sexual abuse, says she believes the "sky is falling" warnings by the In- surance Bureau of Canada are overstated. "There are safeguards in place to keep unworthy claims out of the system," she says. As well, she believes plain- tiffs will continue to use expert evidence whenever possible. "It may not necessarily be required, but it is a good idea to have this evidence put before the court," Wilkinson says. According to Teitelbaum, what remains to be seen is how judges will assess cases where only the defendant provides ex- pert evidence. "If they are going to accept evidence of friends and family of the plaintiffs and the defence leads expert evidence of no real medical condition, how is that going to be weighed?" asks Teit- elbaum. LT Claire Wilkinson says a recent SCC ruling is positive from an access to justice perspec- tive. personal injury CANADA & USA 1.800.265.8381 | EMAIL info@mckellar.com | www.mckellar.com You work hard to ensure your clients get the best possible settlements. Help them maintain their income-tested government benefits/credits by encouraging them to structure! OAS BENEFIT HYDRO REBATE SENIOR HOMEOWNERS' PROPERTY TAX GRANT ONTARIO TRILLIUM BENEFITS HST/GST CREDIT WITHOUT A STRUCTURE GOVERNMENT BENEFITS ARE THROWN AWAY CANADA CHILD BENEFIT McKellar puts more money in your client's pocket GIS RDSP BOND/ GRANT Untitled-6 1 2017-01-10 2:51 PM

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