SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: CV-13-472250
DATE: 20130603

RE: JOSE MANUEL RAPOSO, Plaintiff

AND:
NATALIE DASILVA, Defendant

BEFORE: Stinson J.

COUNSEL:
David Milosevic and Amelia Lau, for the plaintiff, responding party

Andreas G. Seibert, for the defendant, moving party

HEARD: June 3, 2013

ENDORSEMENT

Stinson J. (Orally)

1This is a motion by the defendant attacking the statement of claim. The defendant moves under rules 21.01(1)(b), 21.01(3)(d) and 25.11. These reasons deal with the aspect of the motion under rule 21.01(1)(b).

the facts

2This is an unhappy dispute between siblings. The plaintiff is the brother of the defendant. This is an especially unhappy dispute because it evolves from the circumstances of their father's death and his subsequent funeral. In essence, the plaintiff is suing the defendant for intentional infliction of mental distress. The claim is based on two alleged incidents.

Incident 1

3The plaintiff asserts that the defendant intentionally failed to notify him of their father's medical condition. Specifically, he asserts that she failed to alert him to the fact that their father's medical condition was deteriorating and that he was likely to die and that if the plaintiff wished to have a chance to say his last goodbyes to his father he should attend at the hospital. No such contact was made sufficiently far in advance to allow the plaintiff to attend. The plaintiff asserts that as a consequence of the defendant's intentional act of not communicating with him about the situation, he was unable to say his farewells and suffered emotional distress.

Incident 2

4The second incident is based on events surrounding the father's funeral. The plaintiff alleges that the defendant planned their father's funeral. He further alleges that the defendant refused to allow him to assist in the organization of the funeral and further that she refused to allow him to participate as a pallbearer as properly he should have. The plaintiff asserts that the defendant did so intentionally with a view to causing him mental distress and that he has experienced severe mental distress as a consequence.

the rule 21.01(1)(b) motion

5In the face of these allegations comprising the claim advanced in the statement of claim, and prior to serving a statement of defence, the defendant has moved under rule 21.01(1)(b) to have the action dismissed on the ground that the statement of claim discloses no cause of action. The defendant also moves under rule 21.01(3)(d) and rule 25.11 to have the action dismissed on the ground that the statement of claim should be struck as it is frivolous or vexatious. Both sides agree that if I accept the defendant's submissions under rule 21.01(1)(b) that will dispose of the motion subject to a possible request by the plaintiff for leave to amend.

6Rule 21.01(1)(b) reads as follows:

A party may move before a judge,

(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence, and the judge may make an order or grant judgment accordingly.

7On such a motion the facts alleged in the statement of claim must be accepted as provable or true when applying the test. It must be plain and obvious that the action cannot succeed. The mere fact that a cause of action is novel is not a ground to dismiss the action. See among other cases, Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, and Operation Dismantle v. Canada, 1985 74 (SCC), [1985] 1 S.C.R. 441.

8I turn now to the elements of the cause of action. As I have noted, this case is based on the tort of intentional infliction of mental distress. The elements of that cause of action were originally articulated in Wilkinson v. Downton, [1897] 2 Q.B. 57. That case has been followed and applied for over a century. A recent example is Piresferreira v. Ayotte, [2010] ONCA 384. The three elements of the cause of action of intentional infliction of mental distress are summarized in the plaintiff's factum at para. 39 as follows:

The tort of intentional infliction of mental suffering has 3 elements:

a. an act or statement by the defendant that is extreme, right flagrant or outrageous;

b. the act or statement is calculated to produce harm; and

c. the act or statements causes visible or provable harm.

9The two incidents mentioned above are said by the plaintiff to meet these criteria. The defendant asserts, however, that they do not, hence the rule 21.01(1)(b) motion.

10I will deal initially with Incident 1. This incident was the defendant's alleged deliberate failure to notify the plaintiff of their father's grave medical condition with the result that the plaintiff would have no chance to say his final goodbyes to their father. The defendant argues that this is not actionable because there is no allegation or any act or statement by her. At best, the complaint is of inaction. The defendant argues that no case has held that inaction can give rise to such a claim. On the other hand, says the plaintiff, it really was an intentional act taken to prevent the plaintiff from trying to attend at the hospital to his goodbyes.

11Despite the submission of the plaintiff, I would still characterize the complaint as one based on a failure to act or an omission and not as one founded upon an intentional act on the part of the defendant. In my view, it is telling that no case has been cited in which omission to act has been held to found a cause of action for intentional infliction of mental distress. I do not consider Piresferreira to be such a case. There is a good reason, in my view, for this absence of authority. To accept this submission would be to ask the court to impose a duty to act in questionable circumstances. That may make sense in the context of a claim for negligence. Here, however, we are dealing with an intentional tort.

12It is undesirable to force the court into the field of dictating mandatory positive acts that must be carried out so as to avoid causing offence or unhappiness to others. Imposing positive duties such as a duty to communicate information like this raises a host of other issues such as privacy concerns, limits on the scope of how far the duty may extend, questions as to who should be subject to the duty and so on. These are a few of the reasons why the creation of such a duty is, in my view, undesirable. They also explain the absence of any authority for such a legal obligation. I therefore agree with the defendant that the statement of claim does not disclose a cause of action with respect to Incident 1.

13Incident 2 involves the complaint that the defendant intentionally excluded the plaintiff from the planning of or participation in the funeral of their father as a pallbearer. The plaintiff asserts that this caused hurt and mental distress to him on top of the distress he suffered due to the lack of communication about their father's grave medical condition. The question thus becomes whether the planning and conduct of the father's funeral service can serve to found a claim in damages for intentional infliction of mental distress.

14Two cases were cited where plaintiffs sought to claim damages due to the manner in which a funeral service was conducted. Both actions were dismissed. The common thread is that the court has no business in adjudicating the rituals and observations of funeral rights. I concede that both cases involved claims against religious organizations and not a claim against a sibling as does this one. In my view, however, the same principle should apply.

15As was said by Justice Gray of the Supreme Court of Ontario (High Court of Justice) in Zecevic v. Russian Orthodox Christ the Saviour Cathedral, [1988] O.J. No. 1282 as quoted in para. 52 of Dupervil v. Fabrique de la paroisse Notre-Dame-de-la-Consolata, 2012 QCCS 1477:

The funeral service affects no civil right or property right but deals with the spiritual well-being or salvation of the departed person. We pray for the departed's salvation, a by-product of which is the comfort to the bereaved. The form, content, and the manner in which a prayer service is conducted and indeed, its length, are matters within the discretion of the priest or minister.

And further in the same quotation from Zecevic, the following statement appears:

The authorities generally are Dunnet v. Forneri, …; Ash v. Methodist Church …; Pinke v. Bornhold …; and Dwirnichuk v. Zaichuk …. These cases deal with matters other than funerals but they also stand for the proposition that the right to participate in the ordinances of the Church are purely ecclesiastical.

That case was quoted and followed in the Dupervil case to which I have referred.

16In addition to the foregoing principle, in my view, there is an equally fundamental reason why courts should not become involved in this type of dispute. At its heart, this is an unhappy, intra-familial dispute. For reasons that would consume substantial time and court resources to unravel, the relationships within the Raposo family were far from harmonious. This phenomenon is a sad fact of life, that many other families experience as well. Should the courts become the proving ground for determining the origins, validity and consequences of such disagreements? Should the courts become engaged in deciding on the propriety of familial conduct, the significance of alleged slights and the compensation recoverable due to such alleged wrongs? In my view, the answer is no.

17Guidance on this point has been given by the Supreme Court of Canada, in Frame v. Smith, 1987 74 (SCC), [1987] 2 S.C.R. 99. In that case, both the majority of opinion authored by Justice La Forest and the dissent by Justice Wilson offer helpful insights.

18There, an ex-spouse sought to claim mental distress damages from among others, his ex-wife and her new spouse due to their actions in frustrating his desire to have access to his children. At para. 9, Justice La Forest said as follows:

It would, of course, be possible for the courts to devise a new tort to meet the situation. And the temptation to do so is clearly present, for one cannot help but feel sympathy for the appellant and others in like situations. But there are formidable arguments against the creation of such a remedy. I have already mentioned the undesirability of provoking suits within the family circle. The spectacle of parents not only suing their former spouses but also the grandparents, and aunts and uncles of their children, to say nothing of close family friends, for interfering with rights of access is one that invites one to pause. The disruption of the familial and social environment so important to a child's welfare may well have been considered reason enough for the law's inaction, though there are others.

19At para. 47, Justice Wilson said as follows:

It is obvious also that such a cause of action, if it were made available throughout the family law context, would have the same potential for petty and spiteful litigation and, perhaps worse, for extortionate and vindictive behaviour as the tort of conspiracy. Indeed, the tort of intentional infliction of mental suffering appears to be an ideal weapon for spouses who are undergoing a great deal of emotional trauma which they believe is maliciously caused by the other spouse. It is not for this Court to fashion an ideal weapon for spouses whose initial, although hopefully short-lived objective, is to injure one another, especially when this will almost inevitably have a detrimental effect on the children. Yet, if this cause of action were extended to encompass the facts of this case, it seems to me that there is no rational basis upon which its extension to other areas of family law could be resisted. The gist of the tort is the intentional infliction of mental suffering regardless of the relationship between plaintiff and defendant. It would be available in respect of all inter-spousal conduct both before and after marital breakdown. I would therefore not extend this common law tort to the family law context where the spin-off effects on the children could only be harmful.

20I acknowledge, of course, that these comments were made in the context of spousal relations and correspondingly concerning the spin-off effect on children. That said, allowing the present claim to stand would, in my view, be an invitation to unhappy siblings who are experiencing grief at the loss of a parent to engage in potentially petty and spiteful litigation. Courts should be reluctant to arm such parties with such a weapon as a cause of action based on facts such as these and in that respect, I consider the comments of the Supreme Court of Canada in Frame v. Smith, germane to the case at bar.

21For these reasons, I hold that the statement of claim in relation to Incident 1 and Incident 2 fails to disclose a reasonable cause of action. I was advised by counsel for the plaintiff that the claim based on alienation of affection will no longer be advanced. I therefore conclude that the motion under rule 21.01(1)(b) should succeed, and the plaintiff's action must be dismissed.

___________________________ Stinson J.