In a decision released this summer, the Supreme Court of Canada has clarified that a psychiatric diagnosis is not required to find damages for mental illness.
Recognition of mental injury and awards of damages have had a dismal history in Canada. For most of our court history, damages for such injuries have not been easy to achieve. It seemed as though physical injuries were readily compensable, but mental injuries were subject to additional hurdles. Where mental injury was recognized it was subject to the same aura of stigmatism that mental health issues in Canada have historically carried.
In recent years, mental health issues have increasingly been accepted as health issues. Yet it was still difficult at law for mental injuries to meet the test for negligence. There was a trend developed where evidence in the form of a psychiatric diagnosis appeared necessary to find damages for mental injury. This added an additional burden to the ordinary duty of care that plaintiffs in personal injury suits had to satisfy.
In Mustapha, the Supreme Court clarified the threshold required for proving a case of mental injury, which is the ordinary duty of care analysis. This clarification however did not address that physical and mental injuries were subject to different evidentiary requirements. What persisted after Mustapha was the underlying idea that mental injuries require an additional layer of proof, or else their subjective nature will contribute to exaggerated or dubious claims.
However, this summer’s decision from the Supreme Court, Saadati, indicates that the test for causation in tort, as clarified in Mustapha, is sufficient to weed out unmeritorious cases, and that it does not distinguish between mental and physical injury (para 21). There is no legitimate reason to require a different evidentiary threshold for proving damages to mental health and damages to physical health. The Court held that such a distinction creates a dual standard which results in unequal protection to victims of mental injury (para 36).
The Court reiterated that it is not concerned with diagnosing injuries, but only with symptoms and effects, and that the latter requires no relationship to a psychiatric diagnosis. An expert to testify that a certain diagnosis is present is no longer required. This too accords with a growing trend to eliminate labels associated with mental health and to eliminate intense scrutiny and disbelief.
This recent case better aligns the legal perspective with the health perspective, whereby physical and mental health are not distinct categories. Individuals are treated in the same system for both, so the previous legal distinction did not make much sense. It simply served the function of denying a claimant the ability to recover damages which are fully compensable, which is the point of placing the injured party in the position they were in but for the accident. Accepting that injury to one’s mental well-being should be treated the same as physical injuries should achieve compensability.
Importantly, this case does not go so far as to eliminate the need for expert evidence. But rather that such evidence may be sufficient, but is not necessary. What expert evidence can do is speak elements such as seriousness, length of impairment, and treatment options and viability.