Healey v. Lakeridge Health Corp.

Healey v. Lakeridge Health Corporation et al. Horgan v. Lakeridge Health Corporation et al. [Indexed as: Healey v. Lakeridge Health Corp.]

103 O.R. (3d) 401

2011 ONCA 55

Court of Appeal for Ontario,

Winkler C.J.O., Moldaver, Feldman, Sharpe and

Simmons JJ.A.

January 21, 2011

Torts -- Negligence -- Duty of care -- Plaintiffs bringing proposed class action against hospital after they were exposed to two patients with active TB and allegedly suffered psychological harm as result of receiving notices that they should be tested for TB -- Motion judge erring in framing duty of care issue as whether defendant owed duty of care to prevent psychological injury -- Duty of care in question being hospital's recognized duty to take appropriate steps to prevent potential transmission of TB -- Whether damages for psychological injury could be recovered constituting separate and distinct issue which should not be conflated with question of whether duty of care existed.

Torts -- Negligence -- Psychological harm -- Supreme Court of Canada not changing law that plaintiff cannot recover damages for psychological harm falling short of recognizable psychiatric illness.

The appellants were notified by public health authorities that they had potentially been exposed to patients with active tuberculosis ("TB") at the respondent hospital and that they should be tested for TB. None of the appellants tested positive for TB, but they alleged that they suffered psychological harm as a result of receiving the notices. They brought proposed class actions against the respondent. The respondent moved for summary judgment dismissing the claims pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 on the ground that there was no genuine issue requiring a trial. The appellants brought cross-motions for partial summary judgment on two issues: (1) that the damages claimed were compensable in law, and (2) that the damages could be determined and fixed on an aggregate basis. They admitted that the harm they suffered fell short of a recognizable psychiatric illness, but argued that the "recognizable psychiatric illness" threshold for the recoverability of damages for psychological harm was eliminated by the Supreme Court of Canada in Mustapha v. Culligan. The motion judge granted the respondent's motions for summary judgment, dismissed the appellants' claims and dismissed their motion for partial summary judgment. The appellants appealed.

Held, the appeal should be dismissed.

The motion judge erred in framing the alleged duty of care as whether the respondent owed a duty of care to the appellants to prevent psychological injury or a duty of care to prevent the psychological injury that would be an incident of giving the appellants notification of exposure to an infectious disease. He failed to recognize that, properly framed, the alleged duty of care fell into a well-recognized category and that it was unnecessary to apply the full Cooper/Anns analysis. Whether a plaintiff has sustained compensable damages for psychological injury is a separate and distinct issue which should not be conflated with the question of whether a duty of care exists. The respondent had a duty of care to patients and visitors at the hospital to take reasonable care to prevent the transmission of infectious diseases. Where there is a duty of care to avoid [page402] physical harm to persons or property, that duty embraces the category of claims for nervous shock.

The Supreme Court of Canada did not eliminate the "recognizable psychiatric illness" threshold for the recovery of damages for psychological harm in Mustapha. The passages relied on by the appellants were at most obiter dicta. Moreover, had McLachlin C.J.C. intended to make a fundamental change to the law, she almost certainly would have discussed the authorities and the policy issues at stake in a more extensive manner. Even if Mustapha did change the law, the evidence fell short of demonstrating that the appellants suffered harm of sufficient gravity and duration to qualify for compensation. It is appropriate for the law to decline monetary compensation for the distress and upset caused by the unfortunate but inevitable stresses of life in a civilized society.

Leave to appeal the motion judge's decision to award $260,000 in costs to the respondents should not be granted in view of the motion judge's carefully considered reasons for the award and the dubious and speculative nature of the appellants' claims.

APPEAL by the plaintiffs from the orders of Perell J., 2010 ONSC 725, [2010] O.J. No. 417, 72 C.C.L.T. (3d) 261 (S.C.J.) granting the defendant's motions for summary judgment and dismissing the plaintiffs' motions for a partial summary judgment.

Cases referred toMustapha v. Culligan of Canada Ltd., [2008] 2 S.C.R. 114, [2008] S.C.J. No. 27, 2008 SCC 27, EYB 2008-133554, J.E. 2008-1083, 55 C.C.L.T. (3d) 36, 165 A.C.W.S. (3d) 954, 293 D.L.R. (4th) 29, 375 N.R. 81, 238 O.A.C. 130, consd Anderson v. Wilson (1999), 1999 CanLII 3753 (ON CA), 44 O.R. (3d) 673, [1999] O.J. No. 2494, 175 D.L.R. (4th) 409, 122 O.A.C. 69, 36 C.P.C. (4th) 17, 89 A.C.W.S. (3d) 441 (C.A.) [Leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 476]; Fakhri v. Alfalfa's Canada, Inc., [2004] B.C.J. No. 2200, 2004 BCCA 549, 203 B.C.A.C. 227, 34 B.C.L.R. (4th) 201, 134 A.C.W.S. (3d) 377, distd Other cases referred to Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492, [1977] 2 W.L.R. 1024, 75 L.G.R. 555, 141 J.P. 527, 5 Build. L.R. 1, 4 I.L.R. 21, 243 E.G. 523, [1977] E.G.D. 604 (H.L.); Bywater v. Toronto Transit Commission, [1998] O.J. No. 4913, 83 O.T.C. 1, 27 C.P.C. (4th) 172, 84 A.C.W.S. (3d) 230 (Gen. Div.); Caputo v. Imperial Tobacco Ltd., 2004 CanLII 24753 (ON SC), [2004] O.J. No. 299, 236 D.L.R. (4th) 348, [2004] O.T.C. 112, 42 B.L.R. (3d) 276, 22 C.C.L.T. (3d) 261, 44 C.P.C. (5th) 350, 128 A.C.W.S. (3d) 874 (C.A.); Cooper v. Hobart, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76, 2001 SCC 79, 206 D.L.R. (4th) 193, 277 N.R. 113, [2002] 1 W.W.R. 221, J.E. 2001-2153, 160 B.C.A.C. 268, 96 B.C.L.R. (3d) 36, 8 C.C.L.T. (3d) 26, 110 A.C.W.S. (3d) 943; Duwyn v. Kaprielian (1978), 1978 CanLII 1271 (ON CA), 22 O.R. (2d) 736, [1978] O.J. No. 3663, 94 D.L.R. (3d) 424, 7 C.C.L.T. 121, [1978] 3 A.C.W.S. 336 (C.A.); Frazer v. Haukioja (2010), 101 O.R. (3d) 528, [2010] O.J. No. 1334, 2010 ONCA 249, 317 D.L.R. (4th) 688, 261 O.A.C. 138, 187 A.C.W.S. (3d) 306, 73 C.C.L.T. (3d) 167; Graham v. MacMillan, [2003] B.C.J. No. 334, 2003 BCCA 90, 179 B.C.A.C. 309, 10 B.C.L.R. (4th) 397, 15 C.C.L.T. (3d) 155, 120 A.C.W.S. (3d) 440; Hinz v. Berry, [1970] 2 Q.B. 40, [1970] 1 All E.R. 1074, [1970] 2 W.L.R. 684, 5 I.L.R. 111 (C.A.); Koerfer v. Davies (c.o.b. Caerleon Farms), [1994] O.J. No. 1408 (C.A.); Kotai v. Queen of the North (The), [2009] B.C.J. No. 2022, 2009 BCSC 1405, 70 C.C.L.T. (3d) 221; Mason v. Westside Cemeteries Ltd., 1996 CanLII 8113 (ON SC), [1996] O.J. No. 1387, 135 D.L.R. (4th) 361, 29 C.C.L.T. (2d) 125, 62 A.C.W.S. (3d) 903 (Gen. Div.); McDermott v. Ramadanovic Estate, 1988 CanLII 2840 (BC SC), [1988] B.C.J. No. 824, 27 B.C.L.R. (2d) 45, 44 C.C.L.T. 249, 10 A.C.W.S. (3d) 218 (S.C.); Odhavji Estate v. Woodhouse, [2003] 3 S.C.R. 263, [2003] S.C.J. No. 74, 2003 SCC 69, 233 D.L.R. (4th) 193, 312 N.R. 305, J.E. 2004-47, 180 O.A.C. 201, 11 Admin. L.R. (4th) 45, 19 C.C.L.T. (3d) 163, 127 A.C.W.S. (3d) 178; Rhodes v. Canadian National Railway Co., 1990 CanLII 5401 (BC CA), [1990] B.C.J. No. 2388, 75 D.L.R. (4th) 248, 50 B.C.L.R. (2d) 273, 5 C.C.L.T. (2d) 118, 23 A.C.W.S. (3d) 1280 (C.A.); [page403] Tame v. New South Wales (2002), 211 C.L.R. 317, 191 A.L.R. 449 (H.C.A.); Vanek v. Great Atlantic & Pacific Co. of Canada (1999), 1999 CanLII 2863 (ON CA), 48 O.R. (3d) 228, [1999] O.J. No. 4599, 180 D.L.R. (4th) 748, 127 O.A.C. 286, 93 A.C.W.S. (3d) 268 (C.A.), revg [1997] O.J. No. 3304, 39 O.T.C. 54, 73 A.C.W.S. (3d) 248 (Gen. Div.) [Leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 50]; White v. Chief Constable of the South Yorkshire Police, [1999] 2 A.C. 455, [1999] 1 All E.R. 1, 45 B.M.L.R. 1, [1998] 3 W.L.R. 1509, [1999] I.C.R. 216, [1999] I.R.L.R. 110 (H.L.) Statutes referred to Class Proceedings Act, 1992, S.O. 1992, c. 6, ss. 24, (1), 31(1) Family Law Act, R.S.O. 1990, c. F.3 [as am.] Health Protection and Promotion Act, R.S.O. 1990, c. H.7 [as am.] Law Society Act, R.S.O. 1990, c. L.8, ss. 59.1(2), 59.4 Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rules 20, 37.13(2)(a) Authorities referred to Bélanger-Hardy, Louise, "Droit et émotion: réflexion novatrice sur le préjudice moral" in Sanda Rodgers, Rakhi Ruparelia and Louise Bélanger-Hardy, eds., Critical Torts (Markham, Ont.: LexisNexis, 2009) Butler, Des, Damages for Psychiatric Injuries (Annandale, NSW: Federation Press, 2004) Campbell, D. Spencer and Chris Montigny, "Psychological Harm and Tort Law: Reassessing the Legal Test for Liability" in Hon. Todd Archibald and Michael Cochrane, eds., Annual Review of Civil Litigation 2003 (Toronto: Carswell, 2003) Linden, Allen M., and Bruce Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: LexisNexis Butterworths, 2006) Osborne, Philip H., The Law of Torts, 3d ed. (Toronto: Irwin Law, 2007)

Kirk Baert and Jonathan Ptak, for plaintiffs (appellants). Barry Glaspell and Tanya Goldberg, for Lakeridge Health Corporation. Mary Thomson and Belinda Bain, for David J. Ross and Hak Ming Chiu. Leah Price, for intervenor Law Foundation of Ontario.

The judgment of the court was delivered by

[1] SHARPE J.A.: -- This appeal involves two class actions against the respondent Lakeridge Health Corporation ("Lakeridge") and two physicians arising from incidents in which large numbers of people were exposed to two patients with tuberculosis ("TB"). None of the appellants tested positive for TB. They allege that notices advising class members that they [page404] should be tested for TB as a result of possible exposure caused them mental anxiety, suffering and distress. They admit that the harm suffered fell short of a recognizable psychiatric illness. The central issue on this appeal is whether the harm they suffered gives rise to a claim for legally compensable damages in a negligence action.

Facts

[2] In October 2003, a frequent patient (the first "index patient") at Lakeridge's Oshawa site was diagnosed with active TB. As required by the Health Protection and Promotion Act, R.S.O. 1990, c. H.7, Lakeridge reported this to the Durham Region Health Department. Durham Public Health in turn notified 2,800 people of their potential exposure to TB and advised them to get tested. Most of those notified had been exposed when visiting Lakeridge's emergency room between February and October 2003.

[3] In April 2004, another Lakeridge patient (the second "index patient") was diagnosed with active TB. Again, Durham Public Heath was advised, and 1,602 people were notified and advised to be tested. The majority of people contacted in this second group were exposed when visiting Lakeridge's oncology unit between February and April 2004. Many were cancer patients receiving chemotherapy and were immuno-compromised at the time of exposure.

[4] TB is a potentially fatal disease caused by an organism that usually attacks the lungs. TB exists in both latent and active forms. Active TB is transmitted to others through the air through coughing, sneezing or talking, but it is not highly infectious. The latent form is not communicable, and the risk of infection from casual contact with a person who has active TB is low. It is estimated that 10 per cent of the non- aboriginal Canadian-born population is infected with latent TB. In 2004, there were 657 cases of active TB in Ontario. Given the prevalence of TB, public heath notices advising potentially infected persons to be tested are not uncommon.

[5] The vast majority of individuals with latent TB will not develop the active disease. The risk of latent TB becoming active can be reduced to less than 1 per cent by taking a course of prophylactic medication. However, the chances of latent TB becoming active are increased if the person infected is immuno-compromised, develops a chronic condition, or undergoes other severe physical or mental health issues.

[6] The test for TB involves injecting a small amount of the tuberculin protein under the skin of the inner forearm. The test [page405] site is then examined by a health professional 48 to 72 hours later. A positive skin test may indicate TB infection, but often simply indicates the latent, asymptomatic form of TB that rarely develops into active disease. A positive skin test is followed up with a chest X-ray and a sputum analysis to rule out active infection. There is no way of determining when a patient with a positive skin test was exposed to TB.

[7] It can take up to three months from the date of exposure for the skin test to produce an accurate result. However, as the notices were sent after the date of potential infection, for many of the class members the three-month period would have elapsed by the time they received the notice and so they were able to be tested immediately. It follows that a significant number would have known within 72 hours after the administration of the skin test that they were not infected.

[8] No active case of TB was diagnosed as a result of the Lakeridge incidents. In the 2003 exposure group, 2,155 people were tested for TB: 1,967 people tested negative, indicating no TB infection, and 188 people tested positive, indicating past or current infection with TB, although not necessarily as a result of contact with the Lakeridge index patient. In the 2004 exposure group, 1,384 people were tested: 1,094 people tested negative and 290 people tested positive.

[9] A press release issued at the time of the 2003 notices stated:

It's important to note that the possibility of being infected as a result of exposure to TB is low and the possibility of actually developing the disease is even lower. However, our goal is to try to alert those who may have been exposed and infected, and allow them to take preventative action.

[10] Similarly, the notices to the 2004 exposure group stated that "the risk to you is low". There was also evidence that when accurately informed of the actual risk they face, the concerns of individuals who test positive for latent TB tend to "resolve completely".

The class actions

[11] Two class actions were commenced on behalf of the individuals who had received Durham Public Health notices of potential exposure to TB. The Healey action involved the 2003 incident and the Horgan action involved the 2004 incident. The representative plaintiffs allege that Lakeridge and the index patients' treating physicians negligently failed to properly diagnose the index patients' TB and negligently failed to take adequate steps to prevent the spread of infection. [page406]

[12] The plaintiff classes in both actions were composed of the following subclasses:

-- those who tested positive for TB (the "infected persons");

-- those who tested negative for TB or chose not to be tested (the "uninfected persons"); and

-- family members of the infected and uninfected persons with derivative claims under the Family Law Act, R.S.O. 1990, c. F.3 (the "FLA claims").

[13] This appeal involves the claims made on behalf of the uninfected persons and the related FLA claims. The claims are for damages for the psychological harm allegedly caused by being told of the possibility of TB infection.

Summary judgment motions

[14] In January 2010, Lakeridge moved for summary judgment dismissing the claims pursuant to Rule 20 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] on the ground that there was no genuine issue requiring a trial. The appellants brought a cross-motion for partial summary judgment on two issues: (1) that the damages claimed by the uninfected persons are compensable in law, and (2) that the damages of the uninfected persons and the FLA claims be determined and fixed on an aggregate basis.

[15] The appellants offered the evidence of nine class members as to the harm they had suffered. It was acknowledged that the affiants were the most seriously affected class members in the two actions. The most serious complaints came from patients who were being treated for cancer or who suffered from other serious pre-existing ailments. There was no evidence from any physician or health care worker who had examined or treated any class member. The appellants' expert, a psychiatrist, deposed that in his opinion, it was reasonable to expect that 30-40 per cent of individuals in the uninfected class would experience psychological injury or illness and that an additional 30-40 per cent would suffer from a recognized psychiatric illness. The appellants' expert did not examine any class member or their medical records.

[16] The appellants asked for an award of aggregate damages of $7,500 for each uninfected class member and $750 for each FLA claimant, both amounts to be discounted by 40 per cent on account of the contingency reflected by the expert's opinion that up to 40 per cent of individuals would likely not [page407] suffer psychological injury, for a total award of $4,500 for each uninfected class member and $450 for each FLA claimant.

The motion judge's reasons for dismissing the claims

[17] The motion judge gave extensive reasons for granting Lakeridge's motions for summary judgment, dismissing the claims of the uninfected persons and the derivative FLA claims, and dismissing the appellants' motion for partial summary judgment. In summary, the motion judge made the following determinations.

(a) Duty of care

[18] Lakeridge does not owe the uninfected persons a duty of care to prevent psychological injury. If Lakeridge had a duty of care to the uninfected persons, it would be a duty not previously recognized by the law. To establish the duty, the appellants must satisfy the test set out in Cooper v. Hobart, 2001 SCC 79, [2001] 3 S.C.R. 537, [2001] S.C.J. No. 76, modifying the test in Anns v. Merton London Borough Council, [1978] A.C. 728, [1977] 2 All E.R. 492 (H.L.) (the "Cooper-Anns test"). The motion judge found that the proximity element of the test was not satisfied and that, in any event, there were policy reasons sufficient to negative any duty of care.

(b) Psychological injuries

[19] The uninfected persons did not suffer a type of personal injury for which the law provides compensation. While the evidence shows that the uninfected persons suffered psychological injuries, in the absence of accompanying harm to a body part, negligence law provides no compensation for psychological injury unless it is a "recognizable psychiatric illness". Here, the plaintiffs did not prove that any of the uninfected persons suffered a recognizable psychiatric illness.

[20] The motion judge concluded, at para. 168, that "there is no genuine issue requiring a trial that the affiants either: (a) did not suffer from a recognizable psychiatric illness that would qualify for compensation; or (b) already suffered from a psychiatric illness but there was no proof of exacerbation of their pre-existing psychiatric illness as a result of the shock of receiving the notification of exposure to TB".

[21] The motion judge, at para. 167, rejected the appellants' expert evidence on the ground that it "just explained the common sense that frightening news causes stress and grief to varying degrees of seriousness and that it is possible that some people hearing frightening news may have a reaction that is a [page408] recognizable psychiatric illness". He was not prepared to accept the expert's opinion that 30-40 per cent would suffer psychiatric illness as "[t]hat threshold . . . was not proven to have been passed . . . by any of the affiants, many of whom actually denied any such an injury".

(c) Standard of care

[22] Whether the defendants breached the standard of care was an issue for another day.

(d) Causation

[23] There is a genuine issue requiring a trial that the notification of exposure to TB caused in fact the psychological injuries of the uninfected persons.

(e) Remoteness of damages

[24] Any compensable psychological injuries suffered by the uninfected persons do not satisfy the test for remoteness.

(f) Aggregate assessment of damages

[25] An aggregate assessment of damages is not available in the actions because the prerequisites of s. 24 of the Class Proceedings Act, 1992, S.O. 1992, c. 6 for an aggregate assessment have not been satisfied. If aggregate damages were available, the motion judge assessed them at $1,000 for each uninfected person.

(g) Costs

[26] The motion judge awarded partial indemnity costs to Lakeridge in the amount of $180,000 and to the respondent physicians in the amount of $80,000.

[27] The motion judge also granted the respondent physicians' subsequent motion for summary judgment pursuant to rule 37.13(2)(a) dismissing the claims against them.

Issues

[28] The appellants have raised a number of issues on this appeal:

(1) Did the motion judge err in finding that Lakeridge did not owe a duty of care to the uninfected persons?

(2) Did the motion judge err in finding that the threshold for compensable damages is a "recognizable psychiatric illness"? [page409]

(3) Did the motion judge err in finding the injuries too remote?

(4) Did the motion judge err in finding that causation-in-fact was a genuine issue requiring trial?

(5) Did the motion judge err in finding that an aggregate assessment of damages was not available?

(6) Did the motion judge err in his assessment of the damages?

(7) Did the motion judge err in his application of Rule 20?

(8) Did the motion judge err in his costs award?

Analysis

1. Did Lakeridge owe a duty of care to the uninfected persons?

[29] The first element of a tort claim for negligence is a duty of care owed by the defendant to the plaintiff. Analysis of whether a duty of care exists begins by asking whether the plaintiff and the defendant are in a relationship that has previously been recognized as involving a duty of care. If so, or if the relationship is analogous to a recognized relationship, a prima facie duty of care is established: Cooper v. Hobart, at para. 36.

[30] If the relationship has not been previously recognized as one giving rise to a duty of care, the two-part Cooper-Anns test is to be applied: (1) Does the relationship between the parties justify the imposition of a duty of care on the defendant? This stage involves consideration of foreseeability and proximity, which may include aspects of policy. (2) If the claim survives the first stage, are there overriding public policy grounds that negative the prima facie duty of care?

[31] The motion judge adopted the respondents' proposed description of the alleged duty of care, namely, did the respondents owe "a duty of care to the Uninfected Persons to prevent psychological injury" or "a duty of care to prevent the psychological injury that would be an incident of giving the Uninfected Persons notification of exposure to an infectious disease"? He found that such a duty had not been previously recognized and proceeded to analyze the alleged duty under the Cooper-Anns test. He decided that the proximity element was not satisfied [page410] and that, in any event, the alleged duty was negatived for reasons of policy.

[32] In my respectful view, the motion judge erred in his description of the alleged duty at issue and, on account of that error, he failed to recognize that, properly framed, the alleged duty of care fell into a well-recognized category and that it was therefore unnecessary to apply the full Cooper-Anns analysis.

[33] The appellants properly described the duty of care at issue in their statement of claim: "The defendants owed a duty of care to the plaintiff and class members to take appropriate steps to prevent the potential transmission of . . . TB infection." In oral argument before us, Lakeridge quite properly conceded that it owed a duty of care to patients and visitors at the hospital to take reasonable care to prevent the transmission of infectious diseases.

[34] While some of the earlier cases may have treated the issue of whether damages for psychological injury may be recovered as involving the duty of care, as I read Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, [2008] S.C.J. No. 27, whether the plaintiff has sustained compensable damages is a separate and distinct issue not to be conflated with the question of whether a duty of care exists. In Mustapha, the plaintiff found dead flies in an unopened water bottle and became very upset by the idea that he and his family had been consuming tainted water. He suffered no physical injury.

[35] McLachlin C.J.C. set out the elements of the tort of negligence, at para. 3:

A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant's behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant's breach.

[36] McLachlin C.J.C. noted, at para. 6, that "[i]t has long been established that the manufacturer of a consumable good owes a duty of care to the ultimate consumer of that good". She treated the nature of the injury and the question of whether damages for such an injury are recoverable as a separate issue, to be dealt with at the third and fourth stages of the analysis, after the plaintiff has established a duty of care and a breach of the standard of care.

[37] Where there is a duty of care to avoid physical harm to person or property, that duty embraces the category of claims for nervous shock. In Cooper, when describing the relationships that will give rise to a prima facie duty of care, a unanimous Supreme Court wrote, at para. 36: "First, of course, is the situation where the defendant's act foreseeably causes physical harm [page411] to the plaintiff or the plaintiff's property. This has been extended to nervous shock" (citations omitted).

[38] Accordingly, I respectfully disagree with the motion judge's decision that the claim should be dismissed on the ground that the respondents did not owe the appellants a duty of care.

2. Is the threshold for compensable damages a "recognizable psychiatric illness"?

[39] A plaintiff who claims damages for nervous shock or psychological injury faces two hurdles. First, the plaintiff must satisfy the court that he or she has suffered the type of damages that are compensable. It is well-established that, absent physical injury, there is a threshold that the plaintiff must meet when claiming damages for the negligent infliction of mental, psychological or psychiatric harm. The appellants do not dispute that such a threshold exists. They do, however, challenge the traditional view that a plaintiff must show "some physical symptoms like a heart attack or a miscarriage, or some 'recognizable psychiatric illness'": Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: LexisNexis Butterworths, 2006) at pp. 425-26 (footnotes omitted).

[40] The second hurdle is that the plaintiff must satisfy the court that the psychological injury was caused by the negligence of the defendant. This involves asking whether psychological damage was a reasonably foreseeable consequence of the defendant's negligence.

[41] Both the threshold issue and the issue of remoteness were argued before the motion judge. I will deal first with the question of whether there is a triable issue that the plaintiff class suffered the type of damages that are compensable.

[42] The appellants filed the affidavits of several uninfected class members and FLA claimants, and cross- examinations were conducted. It is common ground that those affiants were the most seriously affected class members. The motion judge provided a very helpful detailed summary of their evidence, at paras. 148-65, that I need not repeat here. Suffice it to say that the affiants variously described their reactions to the notices and to awaiting the results of their tests as being depression, fear, shock, anxiety, anger, frustration, shame, outrage, distress and sleeplessness. Many of them feared for the health and safety of friends and family, and temporarily disrupted their social and family lives. Several of the deponents suffered from pre-existing medical conditions that already produced some or all of the psychological complaints they attributed to the TB notification and [page412] it may well be that the notification exacerbated the degree of their anxiety and distress. None of the affiants suffered a recognizable psychiatric illness. Many did not even consult a doctor about their complaints.

[43] The appellants do not challenge the motion judge's finding that their evidence fails to raise an issue for trial under the traditional test for damages for pure psychological injury requiring a plaintiff to prove a recognizable psychiatric illness. The appellants essentially rest their case on the proposition that the Supreme Court of Canada changed, and significantly lowered, the threshold for compensable psychological injury in Mustapha, citing paras. 8 and 9 of McLachlin C.J.C.'s unanimous judgment:

Generally, a plaintiff who suffers personal injury will be found to have suffered damage. Damage for purposes of this inquiry includes psychological injury. The distinction between physical and mental injury is elusive and arguably artificial in the context of tort. As Lord Lloyd said in Page v. Smith, [1996] 1 A.C. 155 (H.L.), at p. 188:

In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded. Nothing will be gained by treating them as different "kinds" of personal injury, so as to require the application of different tests in law.

This said, psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset. Personal injury at law connotes serious trauma or illness: see Hinz v. Berry, [1970] 2 Q.B. 40 (C.A.), at p. 42; Page v. Smith, at p. 189; Linden and Feldthusen, [Canadian Tort Law, 8th ed. (Markham: LexisNexis, 2006)] at pp. 425-27. The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury. I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept. The need to accept such upsets rather than seek redress in tort is what I take the Court of Appeal to be expressing in its quote from Vanek v. Great Atlantic & Pacific Co. of Canada (1999), 1999 CanLII 2863 (ON CA), 48 O.R. (3d) 228 (C.A.): "Life goes on" (para. 60). Quite simply, minor and transient upsets do not constitute personal injury, and hence do not amount to damage. (Emphasis in original)

[44] The appellants submit that this passage changes the law by removing the need to show a "recognizable psychiatric illness" and replacing for that requirement the need to show harm that goes beyond "upset, disgust, anxiety, agitation or other mental states that fall short of injury" and amounts to "serious trauma or illness" that is "serious and prolonged and ris[ing] above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept". The appellants say that the evidence before the motion [page413] judge demonstrated that such harm had been suffered and, accordingly, that the motion judge erred by granting summary judgment dismissing their claim rather that granting summary judgment in their favour.

[45] The term "recognizable psychiatric illness" was first used by Lord Denning in Hinz v. Berry, [1970] 1 All E.R. 1074, [1970] 2 Q.B. 40 (C.A.), at p. 1075 All E.R., where the plaintiff claimed damages for nervous shock caused by seeing her husband fatally injured:

In English law no damages are awarded for grief or sorrow caused by a person's death. No damages are to be given for the worry about children, or for the financial strain or stress, or the difficulties of adjusting to a new life. Damages are however recoverable for nervous shock or, to put it in medical terms, for any recognizable psychiatric illness caused by the breach of duty by the defendant.

[46] This court has adopted and applied the "recognizable psychiatric illness" language from Hinz v. Berry in a number of cases. In Duwyn v. Kaprielian (1978), 1978 CanLII 1271 (ON CA), 22 O.R. (2d) 736, [1978] O.J. No. 3663 (C.A.), Morden J.A., at pp. 754-55 O.R., stated that "[t]he law is relatively clear that the kind of 'nervous shock' for which recovery may be had involves something more than general emotional upset" and quoted the passage from Hinz v. Berry referring to "recognizable psychiatric illness". As there was no medical evidence that Mrs. Duwyn was suffering from any recognizable psychiatric illness, her claim for mental distress was dismissed. In Koerfer v. Davies (c.o.b. Caerleon Farms), [1994] O.J. No. 1408 (C.A.), this court set aside an award of damages for vexation, frustration and mental distress and stated, at para. 4, that "[t]he courts to date have declined to award damages for mental distress arising from negligence, except where the distress stems from recognizable psychiatric illness".

[47] Both the House of Lords and the High Court of Australia have affirmed the "recognizable psychiatric illness" requirement.

[48] In White v. Chief Constable of the South Yorkshire Police, [1999] 2 A.C. 455, [1999] 1 All E.R. 1 (H.L.), at p. 491 A.C., in a passage quoted by the motion judge, Lord Steyn stated:

The law divides those who were mentally scarred . . . in different categories. There are those whose mental suffering was a concomitant of physical injury. This type of mental suffering is routinely recovered as "pain and suffering". Next, there are those who did not suffer any physical injuries but sustained mental suffering. For present purposes this category must be subdivided into two groups. First, there are those who suffered extreme grief. This category may include cases where the condition of the sufferer is debilitating. Secondly, there are those whose suffering amounts to recognisable psychiatric illness. Diagnosing a case as falling within the first or second [page414] category is often difficult. . . . [y]et the law denies redress in the former case. . . . [o]nly recognisable psychiatric harm ranks for consideration. Where the line is to be drawn is a matter for expert psychiatric evidence. This distinction serves to demonstrate how the law cannot compensate for all emotional suffering even if it is acute and truly debilitating. (Citations omitted)

[49] In Tame v. New South Wales (2002), 211 C.L.R. 317, 191 A.L.R. 449 (H.C.A.), at paras. 193-94, Gummow and Kirby JJ. stated:

In Australia, as in England, Canada and New Zealand, a plaintiff who is unable affirmatively to establish the existence of a recognisable psychiatric illness is not entitled to recover. Grief and sorrow are among the "ordinary and inevitable incidents of life"; the very universality of those emotions denies to them the character of compensable loss under the tort of negligence. Fright, distress or embarrassment, without more, will not ground an action in negligence. Emotional harm of that nature may be evanescent or trivial. . . . . .

Properly understood, the requirement to establish a recognisable psychiatric illness reduces the scope for indeterminate liability or increased litigation. It restricts recovery to those disorders which are capable of objective determination. To permit recovery for recognisable psychiatric illnesses, but not for other forms of emotional disturbance, is to posit a distinction grounded in principle rather than pragmatism, and one that is illuminated by professional medical opinion rather than fixed purely by idiosyncratic judicial perception. Doubts as to adequacy of proof (which are particularly acute in jurisdictions where civil juries are retained) are to be answered not by the denial of a remedy in all cases of mental harm because some claims may be false, but by the insistence of appellate courts upon the observance at trial of principles and rules which control adjudication of disputed issues. (Footnotes omitted)

[50] In Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, [2003] S.C.J. No. 74, at paras. 40-41, Iacobucci J. observed that a plaintiff cannot claim damages for grief or emotional distress, but that "it is well established that compensation for psychiatric damages is available in instances in which the plaintiff suffers from a 'visible and provable illness' or 'recognizable physical or psychopathological harm'" (citations omitted).

[51] Against this line of authority, the appellants cite instances in which some Canadian courts have questioned, either implicitly or explicitly, the recognizable psychiatric illness threshold. In McDermott v. Ramadanovic Estate, 1988 CanLII 2840 (BC SC), [1988] B.C.J. No. 824, 44 C.C.L.T. 249 (S.C.), Southin J. held, at p. 259 C.C.L.T., that there is no "logical difference between a scar on the flesh and a scar on the mind" and allowed a 13-year-old girl who saw her parents die in a car accident to recover damages for emotional pain despite the fact that she had not suffered a recognizable [page415] psychiatric illness. See, also, the concurring judgment of Southin J.A. in Rhodes v. Canadian National Railway Co., 1990 CanLII 5401 (BC CA), [1990] B.C.J. No. 2388, 75 D.L.R. (4th) 248 (C.A.). However, in Graham v. MacMillan, 2003 BCCA 90, [2003] B.C.J. No. 334, 15 C.C.L.T. (3d) 155 (C.A.), at para. 8, the British Columbia Court of Appeal confirmed that, notwithstanding decisions such as McDermott, "the weight of authority supports a recognized psychiatric illness as a condition for liability".

[52] In Ontario, Molloy J. relied on McDermott in Mason v. Westside Cemeteries Ltd., 1996 CanLII 8113 (ON SC), [1996] O.J. No. 1387, 135 D.L.R. (4th) 361 (Gen. Div.). The defendant lost the cremated remains of the plaintiff's parents. The plaintiff had "lost peace of mind", but did not require any professional care or medication as a result of his emotional distress. Molloy J. made a modest damage award, commenting, at p. 379 D.L.R.:

It is difficult to rationalize awarding damages for physical scratches and bruises of a minor nature but refusing damages for deep emotional distress which falls short of a psychiatric condition. Trivial physical injury attracts trivial damages. It would seem logical to deal with trivial emotional injury on the same basis, rather than by denying the claim altogether.

[53] Cosgrove J. followed this approach in Vanek v. Great Atlantic & Pacific Co. of Canada, [1997] O.J. No. 3304, 39 O.T.C. 54 (Gen. Div.). He awarded damages to the parents of an 11-year-old child who became anxious after their child swallowed contaminated grape juice packed in her school lunch. That judgment was reversed by this court in Vanek v. Great Atlantic & Pacific Co. of Canada (1999), 1999 CanLII 2863 (ON CA), 48 O.R. (3d) 228, [1999] O.J. No. 4599 (C.A.), leave to appeal refused [2000] S.C.C.A. No. 50. This court allowed the appeal on the basis that the defendants and the third parties could not have reasonably foreseen the parents' highly unusual reaction and the psychiatric damages that flowed from it. This made it unnecessary for the court to decide whether the recognizable psychiatric illness threshold should be maintained. MacPherson J.A. stated, at para. 62, that "[t]here is no doubt that for many years it was settled law in Ontario and in most jurisdictions that recovery could not take place without such a finding" (citations omitted).

[54] MacPherson J.A. noted that some trial judges had questioned that principle and, at para. 64, that there was "also criticism in the academic literature of the recognizable psychiatric illness factor, most notably by Linden, the dean of Canadian tort scholars, in Canadian Tort Law, [6th ed., (Toronto: Butterworths, 1997)] at p. 402". He concluded, however, at para. 68, that as it was unnecessary to decide the issue, "it is wise to leave [page416] reconsideration of the recognizable psychiatric illness factor to another case".

[55] There are also two appellate-level decisions that certified class actions involving claims for psychological injury falling short of recognizable psychiatric illness but both arose at the certification stage where the point was decided on the pleadings under the minimal "plain and obvious test".

[56] Anderson v. Wilson (1999), 1999 CanLII 3753 (ON CA), 44 O.R. (3d) 673, [1999] O.J. No. 2494 (C.A.), leave to appeal to S.C.C. refused [1999] S.C.C.A. No. 476, involved a class action on behalf of patients notified that they might have been infected with hepatitis B. The uninfected class members asserted a claim similar to that at issue in the present appeal, one for nervous shock on the basis of the psychological trauma they had allegedly experienced after being told of the possibility of infection and the uncertainty as to their condition until they received a negative test. This court set aside the decision of the Divisional Court refusing to certify the claim of the uninfected class members, citing Mason and the trial decision in Vanek. Carthy J.A. held, at p. 679 O.R.:

Given the uncertain state of the law on tort relief for nervous shock, it is not appropriate that the court should reach a conclusion at this early stage and without a complete factual foundation. It cannot be said, in this case, that it is plain and obvious that the claim for the tort of mental distress standing alone will fail.

[57] In Fakhri v. Alfalfa's Canada, Inc., 2004 BCCA 549, [2004] B.C.J. No. 2200, 203 B.C.A.C. 227 (C.A.), the defendants appealed from an order certifying a class action for claims arising from the distribution of food contaminated by the hepatitis A virus. The British Columbia Court of Appeal held, at para. 16, that it could not "be said with finality that only psychiatric disorders are compensable" but there the class members also claimed to have suffered a physical disturbance when immunized due to the alleged carelessness of the appellant. To repeat, however, both Anderson v. Wilson and Fakhri v. Alfalfa's Canada, Inc. were decisions at the certification stage under the minimal "plain and obvious test".

[58] Post-Mustapha judicial decisions have, for the most part, rejected the argument that Mustapha changed the nature of the threshold. Kotai v. Queen of the North (The), 2009 BCSC 1405, [2009] B.C.J. No. 2022, 70 C.C.L.T. (3d) 221 (S.C.) involved a class action arising from the sinking of a ferry. The class action judge, at paras. 64-65, rejected the submission that Mustapha had changed the threshold for recovery of damages for psychological injury. Frazer v. Haukioja (2010), 2010 ONCA 249, 101 O.R. (3d) 528, [2010] O.J. No. 1334 (C.A.), involved a claim arising from a misdiagnosis and non-disclosure of a leg fracture. While the plaintiff did suffer from a recognizable [page417] psychiatric illness, LaForme J.A. observed, at para. 37, that there must be physical symptoms or some "recognizable psychiatric illness" for there to be compensable damages. LaForme J.A. also stated, at para. 16, that he took the Mustapha reference to "mental injury" to be the equivalent to this court's reference to "recognizable psychiatric illness".

[59] Academic writers accept that "recognizable psychiatric illness" is the current legal test but some argue that it should be abandoned in favour of a more lenient approach to accommodate compensating less grievous psychological harm: see, e.g., Linden and Feldthusen, at pp. 439-40; Philip H. Osborne, The Law of Torts, 3d ed. (Toronto: Irwin Law, 2007), at pp. 82-89; D. Spencer Campbell and Chris Montigny, "Psychological Harm and Tort Law: Reassessing the Legal Test for Liability" in Hon. Todd Archibald and Michael Cochrane, eds., Annual Review of Civil Litigation 2003 (Toronto: Carswell, 2003) 133, at pp. 145-46; Louise Bélanger-Hardy, "Droit et émotion: réflexion novatrice sur le préjudice moral" in Sanda Rodgers, Rakhi Ruparelia and Louise Bélanger-Hardy, eds., Critical Torts (Markham, Ont.: LexisNexis, 2009) 203, at pp. 221-25; Des Butler, Damages for Psychiatric Injuries (Annandale, NSW: Federation Press, 2004), at pp. 135-36.

[60] It is apparent from this review of the jurisprudence that the appellants face a very strong -- although admittedly not unbroken or unquestioned -- line of authority that to recover damages for psychological injury independent of any claim for physical injury, they are required to show that they suffer from a recognizable psychiatric illness.

[61] When the passage the appellants rely on from Mustapha is read in the light of this body of jurisprudence and scholarly writing, I find it impossible to imagine that McLachlin C.J.C. could have intended her brief description of the type of psychological injuries that qualify as being compensable to change a well-established, though at times contested, rule. She explicitly stated, at para. 9, that she did "not purport to define compensable injury exhaustively". As I read Mustapha, McLachlin C.J.C. was simply trying to explain in non-technical language the level to which psychological injury had to rise to be eligible for legal compensation. Had she intended to make a fundamental change to the law, she almost certainly would have discussed the authorities and the policy issues at stake in a more extensive manner.

[62] I agree with and adopt para. 63 of the motion judge's reasons, explaining why Mustapha cannot be read as having changed that standard to some other more flexible standard: [page418]

For the purposes of the case at bar, four observations may be made about Chief Justice McLachlin's comments. First, jurisprudentially speaking, her comments about the threshold of psychological injury in a tort claim for negligence were at most obiter dicta because in Mustapha, it was a given that Mr. Mustapha suffered a recognizable psychiatric illness. Second, it is doubtful that the Chief Justice would make an important and potentially far-reaching change in the law by obiter dicta. Third, and in any event, if her comments are taken to be more than obiter and are an authoritative statement of the law, all she decided was that: (a) personal injury damages include psychological injury; but (b) not all psychological upset constitutes personal injury damages. Justice McLachlin expressly left open -- she said: "I would not purport to define" -- the definition of compensable psychological injury except to say "that it must be serious and prolonged and rise about the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly accept. . . . Quite simply, minor and transient upsets do not constitute personal injury and hence do not amount to damage." Fourth, her citation of Hinz v. Berry suggests that she was equating a psychological disturbance that rises to the level of personal injury to a psychiatric illness recognizable to the medical profession.

[63] As the appellants essentially rest their case on the proposition that Mustapha changed the law and as that argument fails, I would dismiss the appeal on this ground. However, I wish to add two points.

[64] First, even if I were to accept the submission that Mustapha did change the law, it is my view that the evidence in this case falls short of demonstrating that the appellants suffered harm of sufficient gravity and duration to qualify for compensation. The harm revealed by the evidence was not "serious trauma or illness" that amounted to more than "upset, disgust, anxiety, agitation or other mental states that fall short of injury" or that was "serious and prolonged and [rising] above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept".

[65] As has been repeatedly stated in the case law, there are strong policy reasons for imposing some sort of threshold. It seems to me quite appropriate for the law to decline monetary compensation for the distress and upset caused by the unfortunate but inevitable stresses of life in a civilized society and to decline to open the door to recovery for all manner of psychological insult or injury. Given the frequency with which everyday experiences cause transient distress, the multifactorial causes of psychological upset, and the highly subjective nature of an individual's reaction to such stresses and strains, such claims involve serious questions of evidentiary rigour. The law quite properly insists upon an objective threshold to screen such claims and to refuse compensation unless the injury is serious and prolonged. Even critics of the current rule tend to agree that it is conceptually sound to limit compensable claims for [page419] psychological harm to those that are serious. Indeed, as I have mentioned, the appellants themselves do not dispute the need to impose some threshold.

[66] Second, I do not wish to be taken as saying the possibility of any change in the formulation of the test should be foreclosed once and for all. The precise manner in which the threshold is defined or identified is a matter of legitimate debate and the "recognizable psychiatric illness" test has attracted criticism from the authors I have already cited as being unduly rigid and dependent upon shifting medical opinion. However, as the nature of the appellants' complaints in this case falls below what I would regard as a minimum acceptable threshold for compensable claims for psychological injury, this case does not provide a proper factual foundation for any reconsideration of the traditional "recognizable psychiatric illness" test.

3. Other issues

[67] As the issues of remoteness, causation and aggregate damages are only reached if the appellants establish an injury that meets the threshold for a compensable claim, it is not strictly necessary for me to consider those issues.

[68] However, for the sake of completeness, I offer the following observations with respect to the issues of causation and aggregate damages.

4. Causation

[69] I see no error in the motion judge's conclusion that the issue of causation was one that could only be determined at trial. The evidence led by the appellants shows that many members of the uninfected class faced health, financial and family issues that were the source of stress and the motion judge did not err in concluding, at para. 241, that "a trial would be necessary to determine the difficult question of whether but for the notice they suffered compensable psychological injuries".

5. Aggregate damages

[70] Where it is possible to determine damages on a class- wide basis without proof of the damages suffered by individual class members, aggregate damages may be awarded. Section 24(1) of the Class Proceedings Act provides as follows:

24(1) The court may determine the aggregate or a part of a defendant's liability to class members and give judgment accordingly where, (a) monetary relief is claimed on behalf of some or all class members; [page420] (b) no questions of fact or law other than those relating to the assessment of monetary relief remain to be determined in order to establish the amount of the defendant's monetary liability; and (c) the aggregate or a part of the defendant's liability to some or all class members can reasonably be determined without proof by individual class members.

[71] Given the nature of the claims advanced here, it seems to me apparent that the assessment of damages requires proof of the harm suffered by the individual class members. The appellants concede that not all members of the class suffered compensable harm, even on the relaxed test they advance for psychological injury. Some class members will have suffered no compensable harm and some will have suffered more stress and anxiety than others. The claims are inherently individual in nature and hence fall squarely within the principle identified by Winkler J. in Bywater v. Toronto Transit Commission, [1998] O.J. No. 4913, 27 C.P.C. (4th) 172 (Gen. Div.), at paras. 18-19, where the plaintiff class advanced a claim for damage caused by smoke inhalation:

The action advances claims for personal injury, property damage and claims under the Family Law Act. These claims cannot, "reasonably be determined without proof by individual class members" as required by s. 24(1)(c). Furthermore, each individual claim will require proof of the essential element of causation, which, in the words of 24(1)(b), is "a question of fact or law other than those relating to an assessment of damages".

In addition, the assessment of damages in each case will be idiosyncratic. All of the usual factors must be considered in assessing individual damage claims for personal injury, such as: the individual plaintiffs time of exposure to smoke; the extent of any resultant injury; general personal health and medical history; age; any unrelated illness; and other individual considerations. Indeed here, the representative plaintiff was suffering from and experiencing symptoms of food poisoning at the time of the incident. The property damage claims of class members must be assessed individually as the underlying facts will vary from one class member to the next. See, also, Caputo v. Imperial Tobacco Ltd., 2004 CanLII 24753 (ON SC), [2004] O.J. No. 299, 236 D.L.R. (4th) 348 (S.C.J.), at para. 55, where Winkler J. stated:

The circumstances [in Bywater] were starkly similar to those in the present case. This case is equally unsuited to an aggregate assessment concerning the damages claimed. There are numerous, and significant, individual issues pertinent to the issue of liability and damages that must be determined. As stated by Feldman J.A. in Chadha [v. Bayer Inc. (2003), 2003 CanLII 35843 (ON CA), 63 O.R. (3d) 22 (C.A.)] at para. 49:

. . . s. 24 of the Class Proceedings Act is applicable only once liability has been established, and provides a method to assess the quantum of damages on a global basis, but not the fact of damage. [page421]

[72] I agree with the motion judge's conclusion, at para. 277:

[T]his is a case like Bywater . . . where the assessment of damages cannot be bifurcated and resolved independently of the determination of liability, and, most particularly, in the case at bar causation-in-fact must be determined before there could be an aggregate assessment of damages.

[73] I do not accept the appellants' submission that the following passage from Anderson v. Wilson, at pp. 678-80 O.R., supports their contention that aggregate damages are appropriate:

There are many persons with the same complaint, each of which would typically represent a modest claim that would not itself justify an independent action. In addition, the nature of the overall claim lends itself to aggregate treatment because individual reactions to the notices would likely be similar in each case -- fear of a serious infection and anxiety during the waiting period for a test result. If evidence from patients to support such reactions to the notices is necessary, it would probably suffice to hear from a few typical claimants. The balance of the evidence as to liability would relate to the conduct of the clinics, the reaction of the Public Health Authorities and foreseeability issues.

[74] Anderson v. Wilson was a certification decision and in the passage cited, Carthy J.A. was discussing the appropriateness of a class proceeding to advance the claims under the test for certification and not the issue of the availability of aggregate damages pursuant to s. 24(1). This point is reinforced, at p. 680 O.R., where Carthy J.A. states that it might be possible to deal with the claim that the defendants' conduct should attract punitive and exemplary damages under s. 24, as that claim could be determined "without a significant involvement" of the individual class members, but he makes no reference to the claim for psychological injury in the category of claims susceptible to being dealt with on an aggregate basis.

6. Assessment of damages

[75] In view of my conclusion that the harm suffered by the class members was not compensable and that aggregate damages are not available, it is unnecessary for me to consider whether the motion judge erred in his assessment of the damages.

7. Did the motion judge err in his application of Rule 20?

[76] The appellants' submission that the motion judge erred in his application of Rule 20 in granting summary judgment is inconsistent with the position they took before the motion judge when they considered the record sufficient to support summary judgment in their favour. In my view, given the nature of the issues, the extensive evidentiary record provided the motion judge with a sufficient basis to decide that there was no genuine [page422] issue for trial. In these circumstances, it is unnecessary to consider the effect of the recent amendments to Rule 20. I leave that question to another day without commenting on the motion judge's analysis of those amendments.

8. Did the motion judge err in his costs award?

[77] The appellants submit that the motion judge erred in awarding $260,000 in costs to the respondents. The Law Foundation of Ontario ("LFO") joins in that submission. LFO funded the litigation, thereby triggering ss. 59.1(2) and 59.4 of the Law Society Act, R.S.O. 1990, c. L.8, which permits defendants to apply to the Class Proceedings Fund for payment of a costs award made against a plaintiff, where the plaintiff has received financial support from the fund. The appellants and LFO submit that the issues raised were novel, qualified as a test case, and involved matters of public interest and that the actions were brought to provide access to justice to a vulnerable class of individuals. They rely on s. 31(1) of the Class Proceedings Act:

31(1) In exercising its discretion with respect to costs under subsection 131(1) of the Courts of Justice Act, the court may consider whether the class proceeding was a test case, raised a novel point of law or involved a matter of public interest.

[78] The appellants also submit that the costs award was prohibitively excessive.

[79] The motion judge agreed with the respondents that s. 31(1) does not apply, as this was not a test case, did not amount to public interest litigation and the bulk of the time was spent on the threshold for compensable damages, which is not a novel issue.

[80] The motion judge gave detailed and comprehensive reasons for making the costs award. Deference must be accorded to his determination of entitlement and quantum of costs. Although I would not wish to be seen as endorsing all elements of his reasoning, I can see no arguable error of law or principle that could justify appellate intervention. While departure from the normal "loser pays" rule may sometimes be justified in class actions, which are designed to foster access to justice, in view of the carefully considered reasons of the motion judge and the dubious and speculative nature of the claims advanced in this proceeding, the appellants and LFO have not persuaded me that leave to appeal the costs order should be granted. Accordingly, I would refuse leave to appeal costs. [page423]

Conclusion

[81] Accordingly, I would dismiss the appeals. The respondents may make brief written submissions as to the costs of the appeals within 15 days of the release of these reasons and the appellants may file their response within ten days thereafter.

Appeal dismissed.