Failure to advise about
injury was factually
linked to mental injury
THOMAS CLARIDGE TORONTO
The Ontario Court of Appeal
has upheld a trial judge’s award
of more than $2.6 million in
damages and costs to a motorcyclist for psychiatric injuries
traced to a doctor’s failure to
advise him promptly of a
minute ankle fracture suffered
in an accident.
In its unanimous decision, the
court held that the trial judge
had followed the test the
Supreme Court of Canada set out
in Mustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, in
quashing a damage award of
$341,775 to Waddah Mustapha,
a Windsor, Ont. hairdresser who
became depressed and phobic
after finding a dead fly in his
bottled water.
In Mustapha, Chief Justice
Beverley McLachlan said the
bottle’s supplier, Culligan of Can-
ada Ltd., could not be found
liable for psychological damage
the plaintiff suffered, because it
could not have reasonably fore-
seen the consequences of his
finding the fly.
A.H.O. Haukioja that the court
should nonetheless reduce the
award for damages and costs.
The trial judge, Superior
Court Justice Patrick Moore,
found that Dr. Haukioja was not
negligent in his treatment of
Frazer in Northumberland Hospital, but that when a radiology
report became available following the patient’s release from
hospital, he breached the requisite standard of care by not
immediately advising the patient
that the report had disclosed a
tiny talar fracture.
Although the judge assessed
damages from the failure to
advise the plaintiff of the fracture
promptly at just $2,500, he went
on to award him $150,000 in
general damages related to the
psychiatric injury; $283,378 for
past lost income; $1,298,429.94
for future loss of income; and
$14,911.44 for future care costs.
He also awarded Frazer’s spouse,
Jennifer Smith, $50,000 under
the Family Law Act, and costs to
the couple totaling $929,168.76.
Before the appeal court, Earl
Cherniak, lead counsel for the
appellant, argued that the dam-
ages were too remote since,
based on Mustapha, Dr. Hauki-
oja could not have reasonably
foreseen that a person of ordin-
ary fortitude would conclude
that the delayed diagnosis was
deliberate, and then go on to
develop a psychiatric illness as
a result of focusing on the
alleged malevolence. As well,
he contended that since there
was no evidence that, “but for”
his conduct, as distinct from
Frazer’s reaction to it, the
psychiatric illness would not
have developed, causation had
not been established.
Justice Canada recently won an
“A” grade from Canada’s Information
Commissioner for its “outstanding”
performance in handling freedom of
information requests in 2008-2009,
despite growing delays in many other
federal departments.
It was the second year in the row
that the Department of Justice (DOJ)
garnered the top mark, after three
successive “F” years. Interim
Commissioner Suzanne Legault lauded
the department’s senior management,
led by then-Deputy Minister John
Sims, for its leadership in turning the
situation around. “Support for access
to information from senior manage-
ment has created a culture of compli-
ance across the organization,” Legault
enthused. She said the DOJ received
289 new access requests in the fiscal
year ending March 30, 2009, but only
three requests were completed after
their due dates. Of 29 complaints, she
found 14 to be unsubstantiated, two
borne out, seven discontinued and six
still pending.
Tamper-proof laws
CONTENTS
NEWS
SCC allows inquiry into death
TIGHT TIMELINES mar the refugee
overhaul, say lawyers................... 1
FISH WEIRS and clam gardens
offer proof of aboriginal title....... 15
of aboriginal man to proceed
EXPLOSIVE ALLEGATIONS send
judicial shockwaves throughout
Quebec......................................... 1
A B.C. court orders the Crown to
create a caribou protection plan 16
BUSINESS & CAREERS
GARY OAKES VICTORIA
A PSYCHIATRIC breakdown was
the doctor’s fault, says the OCA..2
THE SUPREME court allows an
inquiry to proceed ........................2
LAWYERS TALK about the
reasons behind the poor take-up
rate in many class action
settlements ................................ 24
NOVA SCOTIA prosecutors have
lodged a complaint about unsafe
workplaces ................................... 3
COLUMNIST WARREN Smith on
making the most of your lateral
move .......................................... 24
FRED JONES on melding his two
passions in to one high-flying
career ........................................... 4
A NEW study finds almost one-
quarter of employees have been
bullied in the workplace ............. 25
OPINION
A LOOK at how law firms can
engage young associates........... 25
JEFFREY MILLER ........................ 5
COLUMNIST PAUL Kuttner on the
art of selling legal services......... 27
The Supreme Court of Canada has cleared the way for
provincial prosecutors to explain
to a public inquiry why they
didn’t lay charges in the case of
an aboriginal man who died
after being left in a laneway by
Vancouver Police.
Retired B.C. Supreme Court
Justice William H. Davies was
appointed by the provincial gov-
ernment to look into the death
of Frank Paul, a Mi’kmaq from
New Brunswick, whose body
was found in a downtown alley
on the morning of Dec. 6, 1998.
Manitoba’s government tabled
Highway Traffic Act amendments
April 14 that would make it illegal to
tamper with a motor vehicle’s anti-
theft device or airbag system, with a
proposed maximum fine of $5,000.
“Vehicle thefts represent a danger
to drivers, as well as a significant
cost to Manitoba Public Insurance
and ultimately the province,” said
Transportation Minister Steve Ashton.
The amendments respond to concern
that electronic immobilizers have
knowingly been tampered with during
installation of remote starters
because it is cheaper and easier to
disengage the immobilizer when
installing a remote starter than to
work around it, making the anti-theft
devices useless and vehicles more
vulnerable to theft. In other cases,
immobilizers have been disabled or
completely removed during the
course of service and repairs. There
has also been a problem with people
removing airbag systems from
vehicles to re-sell them.
Saskatchewan mourns
FOCUS
Real Property
PRIVATE PROSECUTIONS see
some success .............................. 9
A NEW B.C. Act boosts strata
property owners’ rights ................ 9
The biographies of Adam Maerov and Tobias Whitfield appearing on
p. 15 of our March 19 edition stated that they have advised Canwest
Media Inc. and Canwest Limited Partnership. In fact, they act for the
agent for the senior lenders in Canwest Limited Partnership’s restructur-
ing proceedings.
Correction
THE GOVERNMENT reacts swiftly
to Mining Watch with proposed
legislation ................................... 10
RENOVATION PERMITS: another
reason to be nice to your
neighbour ................................... 12
DEPARTMENTS
RICHES, MCKENZIE & HERBERT LLP
PATENTS, TRADE MARKS, COPYRIGHT, LITIGATION
BARRISTERS & SOLICITORS - PATENT & TRADE MARK AGENTS
PAUL HERBERT, R. PH, B.SC., PHM., LL.B., PH.D. BRANT LATHAM, B.A.SC. B.SC. (CHEM. ENG.), LL.B.
DAN HITCHCOCK, B.ENG. (ELEC. ENG.), LL.B. GARY M. TRAVIS, B.SC. (GEOL.), LL.B.
JEFF PERVANAS, B.A.SC. (ENG. SCI.), LL.B. JASON LEUNG, B.SC. (GENETICS), J.D.
MICHAEL ADAMS, B.ENG. (MECH. ENG.), B.SC., LL.B. BOBBY ATHWAL, B.A.SC. (MECH. ENG.), M.A.SC., LL.B., J.D.
Aboriginal Law
HOW CLIMATE change
intersects with Inuit land claims
agreements........................... 15
Careers . . . . . . . . . . . . . . . . . 25
Classified Ads . . . . . . . . . . . . 23
Lawddities. . . . . . . . . . . . . . . 11
Legal Briefs. . . . . . . . . . . . . . .2
Names in the News. . . . . . . . . 4
Weekly Digest. . . . . . . . . . . . 20
TRADE MARK AGENTS LEONARD GROVE (1930-2006)
MARTA TANDORI CHENG TELEPHONE: (416) 961-5000
2 BLOOR ST. EAST, SUITE 1800 FAX: (416) 961-5081
TORONTO, ONTARIO M4W 3J5 E-MAIL: riches@patents-toronto.com
Flags on the Saskatchewan
Legislature and other public buildings
flew at half mast April 10 as hun-
dreds, including Chief Justice
Beverley McLachlin and two former
premiers, attended a state funeral for
Edward Bayda, Saskatchewan long-
est serving, and first Ukrainian, chief
justice.
Premier Brad Wall said the
78-year-old retired judge would “long
be remembered for his distinguished
and influential judicial career, including
the role he played in ensuring our free
and democratic society as enshrined
in the Charter.” Lauded as a brilliant
and compassionate jurist, Bayda was
Saskatchewan’s top judge for 25
years.
