he Common law or case law is an interesting phenomenon.
On June 2, 2017, the Supreme Court of Canada (the "SCC") released its unanimous decision in Saadati v Moorhead 2017 SCC 28
Because the case arose in British Columbia, it might not have been on the radar of anyone outside of BC up to now. Given that it is a judgment from the SCC, obviously, it is binding on all courts across Canada.
The issue before the Courts was, what proof must a plaintiff adduce to establish a 'mental injury' claim sufficient to receive compensation? The BC Court of Appeal had held that a plaintiff must establish that s/he has a "recognizable psychiatric illness", and supported by expert opinion.
The SCC rejected that threshold. It held that "a finding of legally compensable mental injury need not rest, in whole or in part, on the claimant proving a recognized psychiatric illness." A plaintiff can establish a mental injury based on non-expert evidence that they have suffered from a serious and prolonged disturbance. [My emphasis]
In my 30 plus years dealing with personal injury of all kinds, under different areas of law, the norm for all parties was to rely on expert medical evidence: e.g., a psychiatrist or psychologist.
Saadati is a marked departure.
Under Human Rights restitution scheme, generally, the accepted view was that a Complainant did not have to rely on medical proof to show s/he had sustained "mental anguish". For other injuries, including mental injury, medical proof was required. In the realm of personal injury, plaintiff and defendant alike relied on medical or expert proof to establish, not only whether the plaintiff sustained a mental injury, but also the severity of the injury. As well, the expert medical proof was critical to determine causation, and the reasonable quantum of damages, if any. If the plaintiff did not provide such evidence, the likelihood of having a finding in his/her favour was almost nought.
The practice is that PILs take their fees after a final settlement has been achieved. It is alleged that lawyers take their fees from costs. Nothing seems to be wrong with this practise except, before doing so, counsel must first seek approval from a judge. That is the state of the law.
I am reminded of the SCC's unanimous judgement in F.H. v MacDougal 2008 SCC 53, [2008] 3 SCR 41. The significance of that case is that the Court, via Rothstein J, stressed that "once and for all in Canada, that there is only one standard of proof at common law and that is proof on a balance of probabilities": [para. 40]. The Court made it clear that a plaintiff's evidence does not need corroboration.
Predictably, though, the Court hastened to add that there is no heightened standard of proof in civil cases, but the evidence must always be "sufficiently" clear and convincing and cogent, but the more improbable the event, the stronger the evidence is needed to meet the balance of probabilities test.[para. 39].
Could the Court have underestimated the serious and far-reaching consequences that may flow from its judgements in F. H v McDougall and Saadati? In 2008, the SCC dealt with mental injury in Mustapha v. Culligan of Canada Ltd., [2008] 2 SCR 114, 2008 SCC 27 (CanLII), [Mustapha is the case where the plaintiff sustained serious mental injury after he found a fly in his water]. I recommend that PI litigators read the Mustapha judgment.
The State of the Law: Civil Litigation - Personal Injury
by Patricia DeGuire
21 BLawyerisH/July, 2017
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