In Bothwell v. London Health Sciences Centre, 2023 ONCA 323 (Bothwell), the Ontario Court of Appeal clarified what is required for a claimant to demonstrate a compensable mental injury. The Court confirmed that a claimant’s own evidence of persistent feelings of sadness, anger or frustration, without more, does not demonstrate the requisite degree of disturbance to be compensable.
In Bothwell, the claimant alleged that he suffered nightmares, emotional distress, anxiety, depression and psychological injury as a result of being administered the wrong medication following surgery. At trial, the only evidence of psychological injury came from the claimants themselves, without leading any expert evidence. The trial judge accepted the claimant’s evidence that he was frustrated and angry about the medication error and that those feelings persisted and were revisited when going to work as a paramedic. There was no evidence that the claimant had received treatment for his emotions and he acknowledged that his feelings did not interfere with his ability to do his job as a paramedic.
The trial judge concluded that the claimant’s feelings met the standard described in Saadati v. Moorhead, 2017 SCC 28 (Saadati) to constitute a mental injury (they were objectively and subjectively serious and went beyond ordinary annoyances). It was this determination that was considered on appeal.
On appeal, the Court considered whether the trial judge correctly applied the legal test for determining whether the claimant sustained a compensable mental injury as opposed to psychological upset.
The Court of Appeal reviewed the Supreme Court of Canada’s reasoning in Saadati. The Court reminded that to prove mental injury a claimant does not have to demonstrate that their condition meets the threshold of a recognizable psychiatric illness. However, the claimant must show that the disturbance suffered is “serious and prolonged and rises above the ordinary annoyances, anxieties and fears that come with living in civil society”. Quoting from Saadati, the Court emphasized that in determining whether a claimant has met this burden, it will be important for the trier of fact to consider: (a) how seriously the claimant’s cognitive functions and participation in daily activities were impaired; (b) the length of such impairment; and (c) the nature and effect of any treatment.
The Court of Appeal determined that Saadati provided a “clear direction” that in distinguishing mental injury from psychological upset, the trier of fact must consider not only the claimant’s psychological upset, but also the seriousness of any impairment and level of treatment. Despite citing the correct legal principals, the trial judge was found to have erred in law by failing to recognize that Saadati required that the above considerations be brought to bear in determining whether the claimant succeeded in showing a mental injury.
Applying the mandatory considerations from Saadati, the Court of Appeal concluded that the claimant’s evidence, even if accepted, fell short of establishing that his feelings of anger and frustration amounted to compensable mental injury. There was no evidence to show that the claimant’s continuing feelings of anger and frustration led to any impairment of his cognitive functioning or participation in daily life as he was still able to work and participate in his family life. While the Court acknowledged that expert medical evidence is not necessary, claimants who do not adduce relevant expert evidence to assist triers of fact in considering the Saadati factors and other relevant considerations run a risk of being found to have fallen short.
The Court of Appeal also clarified that the gravity of the experience – even a near-death experience – may be relevant, but it remains an issue whether the claimant’s persistent feelings following the incident meet the requisite degree of disturbance to be a compensable mental injury.
The Bothwell decision is a strong reminder that claimants still bear a significant evidentiary burden to demonstrate that any feelings of anger, frustration and sadness, qualify as a compensable psychological injury. Based on the principles in Saadati, in the absence of evidence of impairment of cognitive functioning, interference with activities of daily living, and treatment, such symptoms (even if persistent) are unlikely to meet the requisite degree of disturbance to constitute a mental injury.