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Did Mustapha alter rules for psychological harm?

|Written By Julius Melnitzer

Did the Supreme Court of Canada’s 2008 decision in Mustapha v. Culligan of Canada Ltd. change the threshold for compensable psychological injury unaccompanied by physical injury?

‘The bar remains where it was despite the plaintiffs’ lawyers’ attempts to move it,’ says Barry Glaspell.

That was the question facing a five-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 member of the defence bar at Borden Ladner Gervais LLP’s Toronto office, and Jonathan Ptak, who with colleague Kirk Baert of Toronto’s Koskie Minsky LLP represented the plaintiffs in the Healey class action, agree that the Healey court unanimously ruled that Mustapha didn’t change the traditional threshold that required that a psychological injury amount to a “recognizable psychiatric illness” in order to be compensable.

Glaspell, however, maintains that Healey clarifies the law.

“The bar remains where it was despite the plaintiffs’ lawyers’ attempts to move it,” he says.

But Ptak says the door is more open than ever to moving the threshold even if the plaintiffs weren’t successful in doing so in Healey.

“What we have in Healey is judicial recognition of the dissenting views about the effect of Mustapha and about the continuing appropriateness of the recognizable psychiatric illness test,” he says.

But the divergence itself ultimately leaves personal injury lawyers in both the plaintiffs’ 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 appellants in Healey tested positive for tuberculosis but they alleged that notices advising them that they should get tested for the illness caused them mental anxiety, suffering, and distress that they variously described as “depression, fear, shock, anxiety, anger, frustration, shame, outrage, distress, and sleeplessness.”

Many of them, fearing for the health and safety of friends and family, temporarily disrupted their social lives. Several had pre-existing psychological complaints that the tuberculosis notification allegedly exacerbated.

But plaintiffs’ counsel made an important concession.

“They admit that the harm suffered fell short of a recognizable psychiatric illness,” wrote Justice Robert Sharpe, who authored the court’s reasons.

“The central issue on this appeal is whether the harm they suffered 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 suffered severe mental distress after noticing a fly in a replacement bottle of drinking water supplied by Culligan.

The Supreme Court ruled that Waddah Mustapha’s “unusual” or “extreme” reaction to Culligan’s negligence, while “imaginable,” wasn’t reasonably foreseeable and therefore too remote to attract an award of damages.

But in the course of her judgment for a unanimous court, Chief Justice Beverley McLachlin opined that “nothing will be gained by treating [physical and psychiatric injury] as different ‘kinds’ of personal injury, so as to require the application of different tests in law.”

The appropriate distinction, rather, was between upset and injury.

“Personal injury at law connotes serious trauma or illness,” she wrote. “The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury.”

In other words, minor and transient upsets didn’t constitute injury and therefore didn’t amount to damage.

But as Sharpe saw it, McLachlin “was simply trying to explain the levels to which psychological injury had to rise to attract legal compensation” and wasn’t aiming to change the standard to a more flexible one.

“As the appellants essentially rest their case on the proposition that Mustapha changed the law and as that argument fails, I would dismiss the appeal on this ground,” he wrote.

Had Sharpe stopped at that point, Healey would probably have been less controversial. But he chose to elaborate.

Noting the plaintiffs didn’t 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.

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, even if Mustapha did change the test to a threshold more flexible than recognizable psychiatric illness, the injuries before the court in Healey weren’t compensable because the harm wasn’t serious and prolonged and didn’t rise above the ordinary annoyances, anxieties, and fears that people living in society routinely accept.

The 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 consideration. It’s a question no less confounding than whether Mustapha changed the law.

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