COURT FILE NO.: 10-CV-409006

Heard: January 27, 2015

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Pantaleo et al. v. Wood et al..

BEFORE: Master Joan Haberman

COUNSEL: Downs, D. for the moving party

Adams, E. for the responding party, Ironwoods

Burns, V. for the responding parties, Wood and Irving

REASONS

Master Haberman:

[1] On January 27, 2015, I heard this motion to amend the statement of claim by adding three paragraphs to it. The motion was dismissed at that time with Reasons to follow. Although this is a rather unusual and clearly a very sympathetic case, I am not satisfied that the proposed amendments are tenable at law. As a result, the motion was dismissed.

BACKSTORY

[2] This action was started by statement of claim issued on August 19, 2010. The plaintiff, Jim Pantaleo (“Jim”) passed away on August 2, 2012. His wife, Allison, from whom he was separated at the time of death, seeks these amendments. She has brought this action in her own name and now also acts as estate trustee for Jim, the co-plaintiff.

[3] According to the statement of claim, the saga begins with the couple’s purchase of a semi-detached house in Toronto and the action stems from the impact of work done on the adjoining property, owned by Jonathan Irving and Gillian Wood (“the Irving-Woods”).

[4] Jim and Allison purchased their home on September 9, 2009. Before moving in, they undertook renovations, ultimately taking up residence upon completion of that work on October 31, 2009.

[5] It is alleged that work on the adjoining property was already in progress at the time the plaintiffs purchased their home and that it went on until January 2010, the Irving-Woods using the defendant, Ironwood, as their contractor. The plaintiffs allege that in the course of the Irving-Woods’ renovations, they removed the foundation wall between their two homes, exposing theirs to the elements. They claim further that the Irving-Wood’s excavation work destabilized the masonry of their home. The statement of claim goes into some detail setting out the impact of these two events on Jim and Allison’s living space.

[6] This did not end the plaintiffs’ problem and matters came to a head on January 18, 2010. The plaintiffs state that on that day without any notice to them, Ironwood demolished the adjoining Irving-Wood house in its entirety, leaving a hole in their dining room ceiling, destroying the lateral structural support and undermining the foundation of their house, and causing other serious structural defects to their house. As a result of being advised by their engineer that these defects rendered their house unsafe and subject to collapse, the plaintiffs vacated the house on January 22, 2010.

[7] The damage claim totals almost $3 million. The plaintiffs state that their house has been rendered “valueless” so must be demolished. The claim they lost their investment in the house along with the cost of renovations and the appreciated value of the house. In paragraph 42, they claim they suffered and continue to suffer emotional upset, mental distress, financial stress and loss of enjoyment of life as a result of these events. This general damage claim extends to both Jim and Allison, with no distinction made between the two. There is no suggestion that any of the defendants was aware that either Jim or Allison was emotionally vulnerable or particularly susceptible to mental illness or an exacerbation of a previous condition.

[8] The claim against the contractor is to the effect that he was incompetent and the owners are sued for not having exercised due diligence in their selection of contractor and obtaining the requisite permits. The action is framed in tort, so requires the existence of a duty between the plaintiffs and each defendant, along with a breach of same, to be actionable.

THE MOTION

[9] The motion is brought pursuant to Rule 26.01, and the plaintiffs seek to add the following paragraphs:

42a: As a direct consequence of the negligence of the defendants and the said upset, distress and stress thereby caused, Allison and Jim Pantaleo separated in the summer of 2010 and Jim Pantaleo committed suicide on August 2, 2012;

42b. Prior to the suicide, Allison and Jim Pantaleo were in the process of reconciling;

42c. Allison claims damages under section 61 of the Family law Act, R.S.O. 1990, c. F.3 for the loss of guidance, care and companionship that she might reasonably have expected to receive from Jim Pantaleo if his death had not occurred.

[10] Although these paragraphs follow paragraph 42 of the pleading as it currently stands, in which both Jim and Allison claim they suffered emotional upset, mental distress and financial stress, paragraph 42a has been written in a form of short-hand, omitting the qualifiers to upset, distress and stress, instead referring to them as “the said”. There is also no express reference back to paragraph 42.

[11] When paragraph 42 is read with the proposed amendments, the plaintiffs appear to assert that it was the (emotional) upset, (mental) distress and (financial) stress attributable to the defendant’s negligence that resulted in two things: the plaintiff’s separation in the summer of 2010 and Jim’s suicide in August 2012. They claims that, notwithstanding that the couple was separated at the time of Jim’s death, they were in the process of reconciling, such that Allison is entitled to damages under the Family Law Act as a result of Jim’s death by suicide.

[12] These allegations add a completely new dimension to this action five years after the claim was issued and 2 ½ years after Jim’s death. While the current paragraph 42 speaks of emotional upset, mental distress and financial stress, there is no suggestion that the level of emotional upset or mental distress suffered was such as to lead to a marriage breakdown and certainly not to one of the parties committing suicide.

[13] I will discuss the law in this area in more depth below, but suffice it to say, at this stage, as a motion brought under Rule 26.01, the focus of the inquiry is on whether what has been proposed is tenable in law. As a result, no extrinsic evidence is permitted, as evidence generally speaks to facts. The fact that something asserted may be true is not a sufficient basis for allowing an amendment unless that facts lead to a legally viable cause of action. Similarly, the fact that what is proposed is factually untrue is not a basis for denying an amendment. In other words, whether or not amendment to a pleading should be permitted is not related to the actual truth of what is asserted, so, unlike a motion for summary judgment, a factual inquiry is neither necessary nor appropriate here.

[14] It was therefore surprising to find Allison’s affidavit, along with Jim’s death certificate and his two “suicide notes” in the motion record. As counsel was well aware that they had no place before this court, one can only hazard a guess as to the purpose of these materials, along with the fact that Allison was present in court for the hearing of this motion, no doubt a painful experience for her, as these matters had to discussed with candour.

[15] As counsel were advised, I did not consider the plaintiff’s evidence in my deliberations.

THE LAW, ANALYYSIS and CONCLUSION

Mandatory nature of Rule 26.01 and tenability in law

[16] The court is required to grant the relief sought when a motion is brought under Rule 26.01, as the Rule states that the court shall grant leave to amend a pleading on such terms as are just, unless doing so would result in prejudice that could not be compensated for by way of costs or an adjournment. There is no suggestion that this case falls into the “unless” proviso.

[17] There is, however, more to this Rule than its strict wording. The court has repeatedly made it clear that an amendment should not be permitted when what is proposed would be struck if the claim had originally been pleaded to include it. This approach imports the concept of tenability in law into Rule 26.01, such that the test on a motion to amend a pleading is effectively the same as on motion to strike.

[18] The process is a straightforward one: the court takes the proposed pleading as it stands and assumes it is capable of being proven for the purpose of the motion. The court then explores whether the alleged facts, if proven, can give rise to a legally viable cause of action (see Brookfield Financial Real Estate Group Ltd. v. Azorim Canada (Adelaide Street) Inc. 2012 CarswellOnt 9176; Schembri v. Way 2012 ONCA 620, 2012 CarswellOnt 11632; Peel Condominium Corp. No. 516 v. Applewood Place Inc. 00-BN-2012 and BN- 2012A). This approach adds a hurdle for the moving party beyond the strict wording of the Rule.

Evidence not admissible

[19] In that the facts, as asserted, are considered “true” for the purpose of the motion, the focus of the inquiry is on whether they can support a legally valid cause of action, rather than on the truth of those facts. As a result, no evidence is admissible. In Shembri, supra, the Court of Appeal noted the following in the context of a motion to amend:

The motion judge erred in suggesting that there must be evidence to sustain such a claim. It may be that because there was such an abundance of evidence already developed in the record in this matter, the motion judge expected sworn or documentary evidence to support the proposed new pleadings. However, this is not a requirement on a motion to add a party (subject to other considerations such as prejudice or abuse of process). As Moldaver J.A. stated in Anderson Consulting v. Canada (Attorney General) (2001), 2001 8587 (ON CA), 150 OAC 177 (Ont. CA), at para. 34: “ [T]he law is clear that unless the facts alleged are based on assumptive or speculative conclusions that are incapable of proof, they must be accepted as proven and the court should not look beyond the pleadings to determine whether the action can proceed.

[20] This is now trite law and the plaintiffs concede that this is the case, yet included evidence in their record which they then relied on it in their factum. I have therefore ignored the supporting affidavit evidence and attached exhibits, as the proposed amendments must stand on their own two legs. All necessary elements that must be pleaded to get the amendments off the ground must be contained within the proposed amendments, themselves, rather than referred to in evidence.

[21] While I can understand the temptation to try to slip some evidence before the court, in the context of a motion to strike, in an effort to shore up a deficient pleading that has been attacked once counsel becomes aware of errors or gaps, the same temptation should not be present when the issue before the court is a motion to amend. Counsel has time, in this instance, to research, review and revise if consent to the proposed amendment is not forthcoming. There is no excuse not to get it right and there should be no need to expect a court to refer to evidence to understand what is being proposed – that must be clear on the face of the proposed amendments.

The “plain and obvious” test

[22] The law has also been clear for some time that, when evaluating the legal validity of a proposed claim, the court should not be concerned about the strength of the allegations or the probability of ultimate success. The amendment should be permitted unless it is clearly impossible of success, when read generously with allowances for drafting (see Atlantic Steel Industries Inc. v. CIGNA Insurance Co, (1997), 1997 12125 (ON SC), 33 OR (3d) 12).

[23] Where there is uncertainty in the area of law raised by the proposed amendment, the amendment should therefore be permitted (see Peel Condominium Corp, supra). The test is often referred to as the “plain and obvious test”, such that proposed amendments should be granted unless it is plain and obvious that the claim they advance will fail.

[24] In this case, I have found that it is plain and obvious that the claim based on the proposed amendments, as pleaded, are certain to fail. There are two aspects to why I reached this conclusion. The first involves the way in which this claim has been pleaded with respect to the cause of Jim’s suicide – the defendants’ negligence which resulted in his mental distress, et al. The second deals with whether or not suicide was a foreseeable event on the facts as pleaded.

Pleading mental illness

[25] In her factum, the plaintiff asserts that that “as a consequence of negligence of the defendants and resulting upset, distress and stress¸ Jim Pantaleo committed suicide. In the proposed pleading, however, this is worded differently:

As a direct consequence of the negligence of the defendants and the said upset, distress and stress, thereby caused, Allison and Jim Pantaleo separated in the summer of 2010 and Jim Pantaleo committed suicide on August 2, 2012.

[26] Reading the proposed pleading generously, I take the term “and the said upset, distress and stress” in proposed paragraph 42a to refer back to paragraph 42, such that the plaintiffs likely intended to say that, as a consequence of the defendants’ negligence, Jim suffered emotional upset, mental distress and financial stress. This is not immediately clear from the draft pleading, nor was this point made in either the factum or during oral submissions by plaintiffs’ counsel. This approach reflects less than artful drafting, particularly in the context of an amend pleadings motion, for the reasons set out above. The plaintiffs had the benefit of the defence arguments in their factum in advance of the hearing, as well as the view from the Bench at the outset of the hearing, yet persisted on proceeding on the basis of this “short-cut” wording.

[27] I am prepared, for the purpose of this motion, to read in the full wording of paragraph 42, thereby putting the draft amendments at their highest, though this was not raised by plaintiffs’ counsel.

[28] In the factum, plaintiffs assert that it was defendants’ negligence, which caused Jim to suffer upset, distress and stress, and that this led to his suicide. In the proposed pleading, the plaintiffs claim that it was the defendants’ negligence that caused Jim’s upset, distress and stress, and that this and the negligence led to Jim and Allison separating and to Jim’s suicide two years later. The linear progression is to the effect that the defendants were negligent; their negligence caused Jim to suffer from upset, distress and stress, and both the negligence and his upset and distress led to two things; the breakdown of the marriage and Jim’s suicide.

[29] The link employed by the plaintiff to get from negligence to Jim’s suicide is his (emotional) upset, (mental) distress and (financial) stress. What has not been pleaded is that any of this caused Jim to suffer from a recognised psychiatric or any form of severe mental illness that could be viewed as a form of personal injury. Instead, the plaintiffs ask the court to accept the end result of suicide as proof of the catalyst for same. In other words, the plaintiffs say that the fact that Jim committed suicide must mean he suffered from a psychiatric injury. I do not agree, and explain why later in these reasons.

[30] In that the parties agree that mental illness caused by the defendants’ negligence must have prompted the suicide for it to be actionable, the appropriate starting point for the analysis is the case law dealing with mental illness.

[31] At one time, the law did not consider mental illness, on its own, as constituting “personal injury”, such that relief was not available when the only form of injury flowing from negligence or breach of contract was mental illness. Over time, however, such an approach came to be seen as out of step with reality, such that mental illness, independent of physical injury, is now well-recognized as a compensable form of personal injury.

[32] However, despite the broader approach to what constitutes personal injury, the courts have continued to demonstrate restraint in this area by limiting the scope of what constitutes “mental illness”. In Mustafa v. Culligan of Canada Ltd., 2008 SCC 27, the Supreme Court of Canada noted that:

…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….The law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury. SI would not propose 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 routinely, accept.

[33] In Healy v. Lakeridge Health Corp., 2011 ONCA 55¸ the Court of Appeal made it clear 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.

[34] The Court of Appeal discusses the strong policy reasons for imposing this threshold, noting that monetary compensation is not available for distress and upset. The court notes:

Given the frequency with which everyday experiences cause transient distress, the multi-factorial 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.

[35] Mental illness is therefore only compensable if it is significant enough to fall within the context of being a form of “personal injury”. It must extend beyond mere psychological upset and must be serious and prolonged to meet the threshold. Exploring what form of mental illness is required to support a claim for damages is therefore the starting point.

[36] As the pleading forms the framework of an action, where mental illness is claimed, it must be pleaded in a manner that reflects a level and quality of mental illness that fits within the range of “personal injury” in order to be compensable. At the very least, the pleading must refer to the illness in a manner that meets the threshold discussed by the Court of Appeal in Healy.

[37] In Millette v. Cote 1974 31 (SCC), 1974 CarswellOnt 254, the Supreme Court of Canada opined, in 1974, as to the degree of foreseeability required to satisfy this criterion. While they agreed that it was not necessary to foresee the precise constellation of events, they found that for liability to be found, one had to be able to foresee in a general way the class or character of injury which occurred.

[38] In this case, this would require the reasonable man in the place of these defendants to be able to foresee that, as a result of their negligence, there was a real risk that Jim could suffer from serious mental illness of such a nature and degree that it could result in his suicide.

[39] In Blackburn v. Roberts 2003 BCSC 824, the British Columbia Supreme Court dealt with a case similar to this one as it involved construction issues, but in the context of a motion to strike a pleading. There, the plaintiff owned a townhouse unit which she had leased out, as she had moved out of town. During the term of the lease, roof repairs to the building were undertaken and poorly executed, such that tar and gravel plugged a drain from the roof which passed through the plaintiff’s unit, and during a heavy rain, her unit sustained significant damage.

[40] The plaintiff was successfully sued by her tenants. She then returned to supervise restoration work, staying first at a motel, then moving back into her townhouse while repairs were underway. The work was slow and she incurred special damages of $7000. All of this caused her considerable aggravation and she alleged that the stress of the flood exacerbated her pre-existing bi-polar syndrome.

[41] The court found that the plaintiff would fail with respect to certain aspects of her claim in view of how they were pleaded, noting that even if all the allegations are true, the court could see nothing:

…that would lead me to conclude that a court would find that the type of mental distress which she (the plaintiff) claims was a reasonable foreseeable consequence of the negligence of the defendants in allowing some tar and gravel to block one of the roof drains.

[42] The court added that even if the defendants were aware the plaintiff was an absentee owner, it was not reasonably foreseeable that she would return to deal with the repairs and move back in during the course of construction.

[43] Here, these proposed amendments fail to assert that Jim suffered either a form of personal injury or mental illness. A pleading of emotional upset and mental distress do not go far enough. What the plaintiffs propose to plead is of a considerably lower degree of interference with Jim’s mental/emotional wellbeing to constitute mental illness. The Supreme Court of Canada has already noted that the law does not recognize upset or other mental states that fall short of injury. In my view, distress and stress fall into the same category as upset, therefore, they fall far short of constituting mental illness that is of a level and nature to be legally compensable.

[44] As a result, while mental illness can qualify as a basis for compensation if pleaded properly, the proposed pleading before the court fails to meet the mark.

[45] The plaintiffs suggest that the end results of suicide means that Jim must have suffered from a form of psychiatric illness. That, however, is a circular argument, and does not excuse a deficient pleading. It is also not an absolute truth. While suicide is most often the result of a disturbed mind, there are other triggers for it. A few that come to mind are: a means of avoiding a painful or difficult end to a fatal illness; religious convictions in the face of religious persecution; avoidance of torture are just some triggers that come to mind as other possible causes of suicide. There are also a multitude of factors leading to suicide, even when the cause is mental illness: chemical imbalance; predisposition to depression; side-effects of medication. Therefore, a claim arising from suicide caused by mental illness must be pleaded with, at the very least, clarity, if not full particularity. The court cannot be expected to “read in” mental illness as a cause when a plaintiff does not raise it. To suggest that the end result suggests the cause is no explanation at all.

[46] In that emotional upset, mental distress and financial stress do not rise to the level of actionable mental illness on their own or when taken together, they cannot give rise to a cause of action based on Jim’s suicide. On this basis, I find that it is plain and obvious that the claim advanced by these amendments cannot succeed.

Suicide and foreseeability

[47] Assuming upset, distress and stress are compensable, was Jim’s suicide, the basis for the claim, foreseeable and hence, compensable, of these facts? Unless suicide is a foreseeable consequence of the causal factors pleaded, the proposed amendments must fail.

[48] Foreseeability is a question of law, not fact (see Cotic v. Gray, 1981 CarswellOnt 577), and was explored in some detail in Mustafa (supra). When discussing what level of likelihood is required for an event to be “foreseeable”, the court noted that:

Any harm that has occurred is “possible”; it is therefore clear that possibility does not provide a meaningful standard for the application of foreseeability. The degree of probability that would satisfy the reasonable foreseeability requirement was described in the Wagon Mound (No. 2) as a “real risk”, i.e. one which would occur to the mind of a reasonable man in the position of the defendant… and which he would not brush aside as far- fetched.

[49] The court went on to state that, built into the concept of foreseeability is the requirement that the situation complained of would occur in a person of ordinary fortitude, such that unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable.

[50] The court was careful to add:

To say this is not to marginalize or penalize those particularly vulnerable to mental injury. It is merely to confirm that the law of tort imposes an obligation to compensate for any harm done on reasonable foresight, not as insurance. The law of negligence seeks to impose a result that is fair to both plaintiffs and defendants, and that is socially useful. In this quest, it draws the line for compensability of damages, not at perfection, but at reasonable foreseeability.

[51] The result, of course, could differ in the event that the defendants had actual knowledge of the plaintiff’s particular vulnerability.

[52] On the basis of law as articulated in Mustafa, I do not find that Jim’s suicide was reasonably foreseeable as a result of the acts of alleged negligence committed by any of the defendants, in the context of the “ordinary fortitude” test.

[53] In their factum, the plaintiffs point out that there have been cases which allow for a claim based on suicide against tortfeasors and they rely on two of them. In Robson v. Ashworth [1985] OJ No. 545, the plaintiff sought damages against the physician who had prescribed Seconal to her husband who had committed suicide by taking a lethal dose of the drug with alcohol. The drug has been prescribed for his insomnia. Though the doctor was aware that the deceased drank to excess, and had marital, business and financial problems, he was not aware that the deceased took this medication in a manner that was not consistent with his instructions.

[54] Galligan J. noted that while there was a well- recognized rule of public policy that the survivors of a person who commits suicide are not entitled to benefit from it, there are circumstances where a tortfeaser may be held liable for death by suicide. He then goes on to discuss the facts of the Cotic case (supra), concluding:

…where the negligent act causes a serious mental condition which rendered suicide likely, then there is a sufficient causal connection between the negligent act and the death to render the torfeasor liable for the death.

[55] In the end, the court found that the physician did not contribute in any way to the suicide, reinforcing the importance, as a matter of public policy, of the concept on individual responsibility.

[56] As noted above, there is no proposed pleading before the court to the effect that the defendants’ negligence caused Jim to suffer from a serious mental condition, which resulted in his suicide.

[57] Thus, even in a case where there was a direct relationship of doctor and patient, with the former having considerable information as to circumstances that could render suicide a possibility, the doctor was found not liable. The general comments also note that the negligence must cause a serious mental condition that leads to suicide for that result to become compensable.

[58] In Gallant v. Thames Valley District School Board et al. 2011 ONSC 869, decided in 2011, Bryant J. was dealing with a 17– year old’s suicide by hanging. In that case, the action was brought by his parents against the Board and his former teacher, alleging that the teacher was negligent in her supervision of the boy, which led to his suicide.

[59] This is reported the decision dealing with the Board and teacher’s motion for summary judgment. The plaintiffs’ case rested on the assertion that the deceased had submitted an assignment by e-mail to his teacher, which he began with the lines:

I just want to kill myself. I want it to be painless…I don’t have access to a gun so the next best way would seem to be to hang myself.

[60] He then went on to discuss his feelings following the rejection of a relationship with a girl four years’ his senior. The teacher read the essay but never advised anyone of its contents.

[61] In assessing whether there could be negligence on these facts, Bryant J. began by focusing on duty of care, noting that it is common ground that a teacher owes a duty of care to her students and the absence of evidence from the teacher as to how she went about discharging that duty. He then went on to discuss Robson, and pointed out that Galligan had paid particular attention to a policy statement contained in the BC Supreme Court in Funk v. Clapp (1984), 1984 546 (BC SC), 12 DLR (4th) 62, where he concluded from that case that:

Whether or not suicide is a crime, it is still against public policy in most circumstances to allow a claim based on that act.

[62] Bryant J. concluded, in 2011, that this remained a correct statement of the principle of public policy.

[63] In Gallant, the motion for summary judgment was dismissed, as Brant J. was of the view the issue was best dealt with at a trial. In the context of what that court was dealing with, the decision was a sound one.

[64] Here, however, we are dealing with a pleadings motion. There is no obvious basis to impose the level of duty of care here, as one might expect to exist as between a doctor and his patient, or a teacher and her student. In both of those cases, the defendants had information which could, and perhaps, should have heightened their concern for the deceased’s well-being. In both, they had a direct personal relationship with the deceased. That is quite different from the factual matrix here, so I do not see these cases as helpful other than in a general way. It is not in dispute that suicide can be the basis for a civil action – the issue here is how it has been pleaded.

[65] This motion comes down to whether what has been pleaded, and the way it has been pleaded, can support a cause of action. On these facts, in the context of the law, I cannot find that suicide has been pleaded in a manner that would make it foreseeable.

[66] I note that though I gave my decision in court, I was not asked to dismiss the motion without prejudice to allowing the plaintiffs to try this again, with the benefit of full Reasons. I have therefore not entertained that approach.

[67] I can be spoken to regarding costs if the parties cannot agree, within 30 days.

Master Joan M. Haberman

Release March 23, 2015