Here's an overview of emotional distress lawsuits in Canada, the common law tests that apply, and litigation best practices for lawyers
Injuries that the law recognizes are not always physical – they also include mental distress, pain, and suffering. In such a case, an emotional distress lawsuit is one civil remedy lawyers can pursue for clients who have suffered serious psychological harm.
With this article, we will discuss the legal basics of an emotional distress lawsuit, how to prove one, and the litigation strategies Canadian lawyers should consider. Lawyers can also share this guide with clients who are considering a claim for emotional distress damages.
Emotional distress lawsuits do not exist in a vacuum – they rely on the same basic elements of negligence that apply to other personal injury cases. Here, the plaintiff must show that the defendant:
The main difference in an emotional distress lawsuit is that the key harm is psychological, and not only physical. This is why proof of damages can be harder and more technical than in a broken-bone case.
We will discuss these elements below. You can also watch this video which briefly discusses how to prove emotional distress lawsuits:
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In negligence-based emotional distress lawsuits, the first question is whether the defendant owed a duty of care to the plaintiff. Common examples include:
Emotional distress usually stems from negligence in car accidents, workplace harassment, unsafe premises, medical malpractice, and other similar situations.
After establishing the duty of the defendant, the plaintiff must then show a breach of that duty through careless or unsafe conduct. Lawyers can prove this through a specific act or omission by the defendant, depending on the duty owed and the circumstances of the case.
The next step is to connect that breach to the emotional distress. The plaintiff must show that the defendant’s conduct directly caused or materially contributed to the mental injury. Notably, this is often where emotional distress lawsuits rise or fall, because of the difficulty of linking the defendant’s breach and the plaintiff’s suffering.
Courts will typically look at:
It is not enough to say that the plaintiff was upset. They must show that the defendant’s act or omission created or worsened a serious psychological problem. Everyday hurt feelings or ordinary stress will not meet the legal threshold in an emotional distress lawsuit.
The final element is damages. One misconception is that an emotional distress lawsuit is only for general damages, such as pain and suffering or loss of enjoyment of life. In fact, it can also lead to special damages, including therapy costs and lost income.
In any emotional distress lawsuit, the plaintiff must prove real mental harm. Drawing on the Supreme Court’s ruling in Saadati v. Moorhead, 2017 SCC 28, courts will look for serious and prolonged disturbance that rises above ordinary annoyances, anxieties, and fears.
As such, mental distress that only amounts to short-term upset usually will not meet this threshold. In Saadati, the Supreme Court revisited mental injury claims. It rejected the idea that a plaintiff needs to prove a recognized psychiatric illness, such as a textbook diagnosis, before recovering damages for mental injury.
Instead, the Court said that the focus must be on the following:
The Court also noted that credible lay testimony, including from the plaintiff and people close to them, can be enough to prove mental injury. Expert psychiatric evidence can be powerful, but it is not a strict legal requirement in every case.
As applied to the elements of personal injury cases mentioned above, emotional distress can arise in two broad ways:
While both routes require proof of harm, intentional cases also focus on the nature of the conduct itself and whether it crosses the line of basic decency.
The case of Mustapha v. Culligan of Canada Ltd., 2008 SCC 27 illustrates how courts assess emotional distress. The Supreme Court held that while mental injury can ground damages, the plaintiff’s reaction to finding a dead fly in bottled water was not “reasonably foreseeable” for a “person of ordinary fortitude.”
These two terms can be explained as follows:
This means that foreseeability for emotional distress is not about how this particular plaintiff reacted, but about what a typical person might experience. If the event would probably not cause serious mental injury to such a person, the law is unlikely to impose liability on the defendant, even if the plaintiff’s actual distress is real.
Check out this video about the recent changes in Ontario’s rules, which may affect personal injury claims, such as emotional distress lawsuits:
Head over to the Special Report on Canada’s Best Personal Injury Law Firms published by Canadian Lawyer, one of our sister publications, for more inspiring stories from colleagues across Canada.
Canada’s common law cap on general damages also applies to emotional distress lawsuits. The 1978 Supreme Court decisions set the cap at $100,000, and it now stands at approximately $470,000 as of 2026, adjusted annually for inflation.
Aside from pain and suffering or general damages, damages in an emotional distress lawsuit can also include special damages. These out-of-pocket expenses, for which the defendant can be held liable, may include the following:
Any claim for damages is always a case-by-case basis, depending on the actual experiences of the plaintiff and the severity of the defendant’s conduct.
Below are some of the litigation strategies for lawyers handling emotional distress lawsuits in Canada:
Lawyers should frame their client’s mental distress as a serious and prolonged disturbance, not just upset feelings. Under common law, Canadian courts now distinguish compensable mental injury from ordinary stress, embarrassment, or hurt feelings.
Lawyers should also structure pleadings and evidence around how the client’s condition substantially impaired their daily functioning, relationships, work, or quality of life. The key language from the Supreme Court is whether the disturbance rises above ordinary annoyances, anxieties, and fears for mental distress to be compensable.
A successful claim requires a clear chain between the defendant’s wrongful conduct and the plaintiff’s psychological harm. For this, lawyers should gather timelines of symptom onset, treatment records, workplace or family observations, evidence of behavioural change, and proof of resulting functional impairment. Courts focus heavily on causation and whether the defendant’s breach directly triggered the plaintiff’s emotional distress.
Claims for damages are changing, with emotional distress lawsuits becoming more common. More clients with mental health concerns are now looking for legal remedies, and lawyers are expected to know how to build a successful claim or defence when in these cases. Current common law principles including those from Saadati and Mustapha, give Canadian lawyers a clear framework for handling these claims.
Check out our Events page for the upcoming lawyer conferences and other gatherings for legal professionals, where personal injury cases, such as emotional distress lawsuits, are discussed.
