Not Enough Harm, No Foul
The Ontario Court of Appeal (ONCA) recently held that a plaintiff must adduce evidence of impairment in addition to psychological upset if they wish to be entitled damages for a mental injury caused by negligence.
The ONCA revisited the Supreme Court of Canada’s decision in Saadati v Moorhead in their recent decision Bothwell v London Health Sciences Centre, 2023 ONSC 323 and applied the principles for determining whether a claimant has a demonstrable mental injury. The ONCA overturned the trial judge’s decision and dismissed the plaintiff’s case because he could not prove a demonstrable mental injury.
The plaintiff in Bothwell was given the wrong medication by the defendant hospital. The trial judge found that the error did not cause any additional physical injury to the plaintiff, but that the plaintiff had suffered a mental injury caused by the medication error. The evidence was that he suffered psychological upset with lingering feelings of anger and frustration. On appeal, the defendant hospital argued that the trial judge erred because he did not consider all the applicable legal principles including the extent of the plaintiff’s impairment due to the mental injury. The ONCA agreed.
The ONCA stated that while expert evidence is not necessarily required, the inquiry must include a consideration of the level of impairment that the symptoms represent. The ONCA distinguished the case from Saadati (where there was evidence of impairment such as changes in personality and personal relationships) and concluded that the plaintiff’s persistent feelings of anger and frustration fell short of proving a mental injury. No treatment was sought for this psychological upset, it did not impair his cognitive functions nor impair his participation in daily life. The impact of the psychological upset was not shown to be “a serious and prolonged disruption that transcended ordinary emotion upset or distress” to meet the threshold of a recognizable psychiatric illness [as noted by the SCC in Saadati].
CanLii link: www.canlii.org/en/on/onca/doc/2023/2023onca323/2023onca323.html
Author: Danielle Ramsay
... See MoreSee Less