Snowball v. Ornge, 2017 ONSC 4601

CITATION: Snowball v. Ornge, 2017 ONSC 4601

COURT FILE NO.: CV-16-556972

DATE: 20170728

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

BROOK-LYNNE SNOWBALL, JOHN SNOWBALL, and DEBBORAH SNOWBALL

Plaintiffs

– and –

ORNGE, 7506406 CANADA INC. o/a ORNGE ROTOR-WING, THE ATTORNEY GENERAL OF CANADA, TRANSPORT CANADA INSPECTOR #1, AND TRANSPORT CANADA INSPECTOR #2

Defendants

Christopher Du Vernet and C. McGoogan, for the Plaintiffs

Timothy Trembley and L. Kittmer, for the Defendants Ornge and 7506406 Canada Inc.

HEARD: July 20, 2017

M. D. FAIETA, J.

REASONS FOR DECISION

INTRODUCTION

1This action arises from the crash of an air ambulance helicopter that took the life of Christopher Snowball (“Snowball”). The plaintiffs, being Snowball’s immediate family, have commenced an action against the defendants in negligence for damages for mental distress and damages under s. 61 of the Family Law Act, R.S.O. 1990, c. F.3 (“FLA”), as a result of his death.

2The family of another paramedic, Dustin Dagenais, who died in the same helicopter accident, also commenced an action against the defendants seeking the same relief. See Dagenais v. Ornge, Court File No. CV-16-558377.

3The defendant Ornge and 7506406 Canada Inc. (hereafter collectively referred to as “Ornge”), the operator of the air ambulance service, bring this motion pursuant to r. 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 in respect of both actions. Ornge submits that no right of action exists at common law for mental distress resulting from the negligently caused death of a human being unless the plaintiffs witnessed the accident or its aftermath. Ornge submits that the plaintiffs’ only right to claim is under s. 61 of the FLA.

4Given the similarity of their allegations, the parties have agreed that the outcome of this motion in relation to the Snowball action shall bind the parties to the Dagenais action.

5For the reasons given below, I find that it is not plain and obvious that the plaintiffs’ negligence action seeking damages for mental distress as a result of the death of Snowball has no reasonable prospect of success.

BACKGROUND

6The Statement of Claim in the Snowball action advances a claim in negligence for mental distress as well as a claim pursuant to s. 61 of the FLA.

7The Statement of Claim includes the following allegations:

1. Each Plaintiff claims against the Defendants, jointly and severally, for:

(a) general damages in the amount of … ($500,000.00) per Plaintiff, for negligence;

(b) general damages in the amount of … ($250,000.00) per Plaintiff, for loss of care, companionship and guidance;

(c) special damages in an amount to be particularized … for loss of income and support, and out-of-pocket expenses incurred by each Plaintiff;

(d) punitive and exemplary damages in the amount of … ($500,000.00);

2. During the night of May 31^st, 2013, Christopher Snowball (“Christopher”), a paramedic, perished when a medical helicopter operated by the Defendant Ornge in Moosonee, Ontario, crashed and burned. He was 38 years old.

3. Christopher Snowball left behind a close-knit family, including his then 16-year old daughter Brook-Lynne Snowball, and his parents, John Snowball and Deborah Snowball. The loss was utterly devastating to his family members.

4. The crash and Christopher’s ensuing death was completely avoidable, and occurred only because of the gross negligence of the Defendants herein.

Negligence

30. The Plaintiffs state and the fact is that the negligent acts or omissions of the Defendants caused or contributed to the crash which killed Christopher Snowball.

31. Particulars of the negligent acts and omissions of Ornge are as follows:

a) Ornge failed to ensure that the pilots had sufficient training and experience to safely complete the flight, including, without limitation, night- and instrument-flying proficiency;

33. Full particulars of the negligent acts and omissions committed by the Defendants are set out in the Transportation Safety Board of Canada’s Aviation Investigation Report….

34. In the circumstances described hereinabove, the Defendants owed the Plaintiff a duty of care.

35. Previous decisions of this Court and other Courts in Canada have established that a duty of care is owed to family members of persons who die in aviation crashes by Transport Canada, its inspectors, and the operators of such flights. The Plaintiffs therefore state that there is a presumptive duty of care owed by the Defendants to the Plaintiff in the circumstances of this case.

36. A presumptive duty of care arises in this case and has been previously recognized in factually analogous cases precisely because (1) the harm which occurred was the reasonably foreseeable consequence of the Defendants acts and omissions, and (2) there is sufficient proximity between the parties that it would not be unjust to impose a duty of care on the Defendants.

37. In the alternative, if a presumptive duty of care does not arise in this case, … , a duty of care ought to be recognized in the circumstances of this case.

38. The Defendants were all well aware that [Ornge] were operating dangerous machinery and that the slightest dereliction of duty could have catastrophic consequences.

39. The Defendants knew or ought to have known that persons such as Christopher Snowball who were on board their flights were likely to have family members and other persons close to them who were likely to experience significant mental and emotional distress if persons such as Christopher Snowball were to die.

40. In these circumstances, the Plaintiffs state that the Defendants owed a private-law duty of care to the Plaintiffs, which they breached in the manner set out hereinabove.

Mental Distress

52. The Plaintiffs had a tight-knit family, and in particular maintained a very close relationship with Christopher throughout his entire life. The news of Christopher’s death hit the Plaintiffs like a freight train.

53. As a direct and foreseeable consequence of the Defendants’ negligence in causing or contributing to Christopher’s death, as particularized hereinabove, the Plaintiffs suffered and continue to suffer extreme mental and emotional distress.

54. Particulars of the mental distress experienced by the Plaintiffs are as follows:

a. Recurrent, involuntary, intrusive, and distressing memories, and dreams related to Christopher Snowball’s death;

b. Dissociative reactions;

c. Intense and prolonged physical distress at exposure to cues that remind them of Christopher Snowball.

d. Avoidance of external reminders that arouse distressing memories … ;

e. Persistent negative emotional states;

f. Markedly diminished interest or participation in significant activities;

g. Feelings of detachment and estrangement from others;

h. Persistent inability to experience positive emotions;

i. Irritable behaviour and angry outbursts;

j. Hypervigilance;

k. Problems with concentration;

l. Significant sleep disturbance and recurring nightmares;

m. Recurring ruminations over the horrible manner in which the late Christopher Snowball met his death, the terrible agony he endured before perishing ... ;

n. Unresolved anger at the Defendants neglect….

56. The mental distress suffered by the Plaintiffs was caused by the negligent acts of the Defendants particularized hereinabove.

57. The Defendants were well aware that the helicopter at issue was staffed by people such as the late Christopher Snowball, and that those people could be killed if it crashed. Moreover, the Defendants were also aware that those people on board the helicopter had families and loved ones, who were likely to suffer significant emotional trauma if their family member was killed.

58. It was accordingly reasonably foreseeable that if Christopher Snowball was killed, the Plaintiffs would suffer significant mental distress, and the Plaintiffs did in fact suffer significant mental distress.

59. The Plaintiffs all had one of the closest relationships possible to the deceased – that of parent and child. The Plaintiffs therefore state and the fact is that they were within the direct contemplation of the Defendants as persons who would suffer damages as a consequence of the Defendants’ negligence.

60. The Plaintiffs accordingly seek damages of $500,000.00 each for the mental distress which they have suffered as a direct and foreseeable consequence of the Defendants’ negligence, particularized hereinabove.

Care, Companionship and Guidance

61. The Plaintiff Brook-Lynne Snowball was 16 years old at the time of her father’s death. As a child, she was especially dependent upon her father to provide her with care, companionship and guidance in all aspects of her life.

62. Brook-Lynne Snowball had a very close emotional bond with her father. She would routinely look to him for guidance and support with all aspects of her life, from her school work to her personal relationships.

63. Brook-Lynne Snowball and her father would frequently engage in recreational activities such as fishing, camping, and horseback riding. Through these activities, Brook-Lynne Snowball developed and deepened her emotional bond with her father.

64. As a minor, Brook-Lynne Snowball was also financially dependent on her father.

65. Brook-Lynne Snowball had spoken with her father about attending university, and planned to do so. However, after his death, she was left utterly adrift. Previously a successful and motivated student, after her father’s demise she barely managed to finish high school. Now lacking the guidance and support of her father, and struggling with the trauma of his death, she has been unable to pursue any further education.

66. Brook-Lynne Snowball’s future earning capacity has been significantly diminished as a consequence of the loss of care, companionship and guidance and by the mental distress she has experienced arising out of her father’s death.

67. The Plaintiff states and the fact is that she is entitled to compensation from the Defendants for her loss and her injury.

68. The Plaintiffs John Snowball and Deborah Snowball have also suffered a grievous loss of care, companionship and guidance. …

69. The Plaintiffs state and the fact is that they have suffered a significant loss of care, companionship and guidance as a consequence of their son’s death, to which they are entitled to compensation, and seek $250,000.00 each for the loss of care, companionship, and guidance which they have all suffered as a consequence of the Defendants’ negligence.

70. The Plaintiffs plead and rely upon section 61 of the Family Law Act, R.S.O. 1990,c . F.3, as amended.

Punitive and Exemplary Damages

78. The Plaintiffs state that the acts and omissions of the Defendants set out hereinabove constitute such oppressive, high-handed misconduct as to warrant an award of punitive damages.

ANALYSIS

The Test under r. 21 of the Rules of Civil Procedure

8Ornge’s brings this motion under r. 21 of the Rules of Civil Procedure for “[a]n order for a determination of a question of law raised by a pleading”. Ornge’s motion raises two issues:

(1) Do the plaintiffs have a right to advance a claim at common law for mental injury resulting from the death of Christopher Snowball? [Notice of Motion, page 2, paragraphs (d), (e) and (f)]

(2) Are the plaintiffs’ claims under s. 61 of the FLA governed by the limitation period under s. 38 of the Trustee Act, R.S.O. 1990, c. T.23 or by the limitation period under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B? [Notice of Motion, page 2, paragraphs (g) and (h)]

9Rule 21.01(1)-(2) of the Rules of Civil Procedure provides that:

(1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial saving of costs; or

(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.

(2) No evidence is admissible on a motion,

(a) under clause (1) (a), except with leave of a judge or on consent of the parties;

(b) under clause (1) (b).

10At the hearing of this motion, the plaintiffs noted that Ornge’s Notice of Motion does not specify which specific provision of r. 21 is being relied upon by Ornge in respect of the determination of the first issue. In my view, r. 21.01(1)(b) governs the analysis of whether the plaintiffs’ claim in negligence is tenable.

11In R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, at paras. 17, 19, 21, the Supreme Court of Canada provided the following guidance on when a claim should be struck:

… A claim will only be struck if it is plain and obvious, assuming the facts pleaded to be true, that the pleading discloses no reasonable cause of action. Another way of putting the test is that the claim has no reasonable prospect of success. Where a reasonable prospect of success exists, the matter should be allowed to proceed to trial.

The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial.

Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. Before Donoghue v. Stevenson, 1932 536 (FOREP), [1932] A.C. 562 (H.L.) introduced a general duty of care to one’s neighbour premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners, Ltd., [1963] 2 All E.R. 575 (H.L.), a tort action for negligent misstatement would have been regarded as incapable of success. The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial. [Emphasis added; citations omitted.]

Do the Plaintiffs’ Claims in Negligence for Mental Injury have no Reasonable Prospect of Success?

12For more than 200 years, the common law has provided that the right to bring an action in tort does not survive the death of a person. Neither the estate of the victim nor the victim’s relatives have a right to sue for their losses: Baker v. Bolton (1808), 1 Camp. 493, 170 E.R. 1033. In that case, the plaintiff brought an action against the proprietor of a stage-coach, in which the plaintiff and his wife were travelling, that overturned and led to the death of the plaintiff’s wife about one month later. The court, at p. 1033, found that the plaintiff was not entitled to any damages for the loss of her “society”, or for “distress of mind he had suffered on her account” in the form of “great grief, vexation and anguish of mind” after the moment of her death. Lord Ellenborough stated that “[i]n a civil Court, the death of a human being could not be complained of as an injury”.

13If there was a principled basis for this rule it was not described in Baker. Courts have been left to speculate as to why a person should be barred from seeking compensation for losses resulting from the death of a family member, but not when it results from an injury to a family member: Ferraiuolo v. Olson, 2004 ABCA 281, 246 D.L.R. (4th) 225, at paras. 19-30, 68; and Monahan Estate v. Nelson, 2000 BCCA 297, 76 B.C.L.R. (3d) 109, at paras. 5-6. One commentator has noted that a strict application of Baker has “the astonishingly absurd result that a parent could recover for mental disorder caused by negligent injury to their child but not where the negligence has killed their child”: Dr. Norman Katter, “Reining in the Rule in Baker v Bolton”, online: (July 2015), 73 Hearsay, The Journal of the Bar Association of Queensland <www.hearsay.org.au/index.php?option= com_content&task=view&id=1979&Itemid=4>.

14Despite its dubious principled basis, Baker has generally continued to apply in Canada, Australia and England: Mason v. Peters (1982), 1982 1969 (ON CA), 139 D.L.R. (3d) 104 (Ont. C.A.), at pp. 30-32, leave to appeal refused, [1982] S.C.C.A. No. 51; Lord (Litigation Guardian of) v. Downer (1999), 1999 1875 (ON CA), 179 D.L.R. (4th) 430 (Ont. C.A.), at para. 4, leave to appeal refused, [1999] S.C.C.A. No. 571; Ordon Estate v. Grail, 1998 771 (SCC), [1998] 3 S.C.R. 437, at paras. 98, 105; Admiralty Commissioners v. S.S. Amerika, [1917] A.C. 38 (H.L.); and Barclay v. Penberthy, [2012] HCA 40, 246 C.L.R. 258 (Austl. H.C.), at paras. 26-27. However, no such limitation exists under the Civil Code of Québec: Augustus v. Gosset, 1996 173 (SCC), [1996] 3 S.C.R. 268, at para. 27.

15The harshness of Baker led to statutory reform in England in 1846, in Ontario and Quebec in 1847 and in other provinces and common law jurisdictions. In Ontario, the impact of Baker is somewhat muted given that s. 61 of the FLA permits the family of the deceased to maintain an action for pecuniary damages including damages for loss of guidance, care and companionship. However, there is no basis under s. 61 of the FLA to recover for grief, sorrow or mental anguish suffered by reason of the death of a family member: Mason, at pp. 32, 39; or punitive and aggravated damages: Latimer v. Canadian National Railway Company, 2007 5689 (ON SC), at paras. 7-10. Damages for grief following the death of a family member are authorized by statute in Alberta, Saskatchewan and Quebec: see Government of Alberta, Justice and Solicitor General, Review of Damage Amounts under Section 8 of the Fatal Accidents Act (A Discussion Paper) (Edmonton: Fatal Accidents Act Review, May 2012), at p. 6. In the United Kingdom, damages for bereavement following the death of a family member is also authorized by statute: Fatal Accidents Act 1976 (UK), 1976, c. 30, s. 1A.

16The plaintiffs submit that claims in negligence for damages for mental injury suffered by a family member following the injury or death of another family member are allowed. Some cases arise from witnessing the bodily injury or death suffered by a family member: Logan v. Lovesy, [1983] O.J. No. 262 (H.C.). Other cases arise from seeing the aftermath of the accident involving a family member: McCartney v. Andrews, [1987] O.J. No. 1092 (H.C.); and McLoughlin v. O’Brian, [1983] 1 A.C. 410 (H.L.); or witnessing the injury or death of a stranger that the claimant tried to save following an accident: Bechard v. Haliburton Estate (1991), 1991 7362 (ON CA), 5 O.R. (3d) 512 (C.A.). However, none of the cases provided by the plaintiffs involve a situation where damages for mental injury have been awarded to a person who has not suffered bodily injury or who has not witnessed the injury or death of another person or its immediate aftermath. Courts have refused to award damages for mental injury to a person who is merely informed of an accident: Abramzik et al. v. Brenner et al. (1967), 1967 415 (SK CA), 65 D.L.R. (2d) 651 (Sask. C.A.); Rhodes Estate v. C.N.R., 1990 5401 (BC CA), 50 B.C.L.R. (2d) 273 (C.A.), leave to appeal refused, [1991] S.C.C.A. No. 1 and Latimer, at paras. 12, 14.

17The plaintiffs submit that the Supreme Court of Canada’s decision in Saadati v. Moorhead, 2017 SCC 28, is a “game changer” in that it rejected the use of various considerations, such as geographical and temporal proximity, as absolute bars to the recovery of damages for mental injury in negligence.

18The ratio of the Supreme Court of Canada’s decision in Saadati is that a claimant in negligence is not required to prove a recognised psychiatric illness in order to establish that he or she has suffered a mental injury so long as “the disturbance suffered by the claimant is ‘serious and prolonged and rise[s] above the ordinary annoyances, anxieties and fears’ that come with living in civil society” (citations omitted): Saadati, at para. 37.

19In arriving at the above conclusion, the court considered the legal principles governing a claim for the recovery of damages for mental injury caused by negligence. It ruled that the elements of the cause of action in negligence described in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 3, (namely, findings that: (a) the defendant owed the plaintiff a duty of care; (b) the defendant’s behaviour breached the standard of care; (c) the plaintiff sustained damage; and (d) the damage was caused, in fact and law, by the defendant’s breach) furnish a sufficiently robust array of protections against unworthy claims for negligently caused mental injury without the need for satisfying arbitrary, absolute proximity criteria: Saadati, at paras. 19-22.

20Moreover, the Supreme Court of Canada in Saadati, at paras. 14-16, 18-24, stated the following:

14 The early common law’s posture towards claims for negligently caused mental harm was one of suspicion and sometimes outright hostility. … Mental injury was seen as “not derived through the senses, but [as] a product of the imagination”. This scepticism persisted into the last century, such that mental injury was not compensable unless accompanied by physical injury.

15 While the absolute bar to recovery for mental injury absent physical injury was eventually lifted, the suspicion which originally impelled that bar persisted, and common law courts continued to impose conditions upon recovery beyond those applied to claims for negligently caused physical injury. While, therefore, in England liability for negligently caused mental injury was first recognized as early as 1901, it was conditional upon “a shock which arises from a reasonable fear of immediate personal injury to oneself”, or, “a reasonable fear of immediate personal injury either to [the claimant, or the claimant’s children]”. While recovery for mental injury in Canada remained parasitic to recovery for compensable physical injury well into the 20th century, by mid-century Canadian courts had also begun to permit recovery on similar conditions as English law — typically, on claimants having had at the material time a reasonable fear of physical injury to themselves or to their family.

16 Further obstacles to recovery for mental injury arose in English law. In McLoughlin v. O’Brian, at pp. 419-21, Lord Wilberforce posited three considerations that could limit the boundaries of compensable “nervous shock”: the class of persons whose claims should be recognized (often referred to as relational proximity), the proximity of such persons to the accident (locational, or geographical proximity), and the means by which the “shock” is caused (temporal proximity). Where claimants alleged mental injury arising out of a sudden traumatic event, later judgments further distinguished between a “primary” victim (who was directly involved as a participant) and a “secondary” victim (who witnessed physical injuries caused to others). …

18 Like the English courts, Canadian courts have occasionally struggled, as Professor Klar has described, “to find words which can clearly explain why, on the basis of arbitrary policy choices, certain types of claims seem to be too remote and uncompensable”. …

19 This Court has not, however, adopted either the primary/secondary victim distinction, or McLoughlin v. O’Brian’s disaggregated proximity analysis. Rather, in Mustapha, recoverability of mental injury was viewed (at para. 3) as depending upon the claimant satisfying the criteria applicable to any successful action in negligence — that is, upon the claimant proving a duty of care, a breach, damage, and a legal and factual causal relationship between the breach and the damage. Each of these elements can pose a significant hurdle: not all claimants alleging mental injury will be in a relationship of proximity with defendants necessary to ground a duty of care; not all conduct resulting in mental harm will breach the standard of care; not all mental disturbances will amount to true “damage” [qualifying] as mental injury, which is “serious and prolonged” and rises above the ordinary emotional disturbances that will occasionally afflict any member of civil society without violating his or her right to be free of negligently caused mental injury (Mustapha, at para. 9); and not all mental injury is caused, in fact or in law, by the defendant’s negligent conduct.

20 Indeed, the claim in Mustapha failed on that last element: the claimant’s damage was not caused in law by (that is, it was too remote from) the defendant’s breach. Mustapha thus serves as a salutary reminder that, even where a duty of care, a breach, damage and factual causation are established, there remains the pertinent threshold question of legal causation, or remoteness — that is, whether the occurrence of mental harm in a person of ordinary fortitude was the reasonably foreseeable result of the defendant’s negligent conduct (Mustapha, at paras. 14-16). And, just as recovery for physical injury will not be possible where injury of that kind was not the foreseeable result of the defendant’s negligence, so too will claimants be denied recovery (as the claimant in Mustapha was denied recovery) where mental injury could not have been foreseen to result from the defendant’s negligence.

21It follows that this Court sees the elements of the cause of action of negligence as furnishing principled and sufficient barriers to unmeritorious or trivial claims for negligently caused mental injury. The view that courts should require something more is founded not on legal principle, but on policy — more particularly, on a collection of concerns regarding claims for mental injury (including those advanced in this appeal by the intervener Insurance Bureau of Canada) founded upon dubious perceptions of, and postures towards, psychiatry and mental illness in general: that mental illness is “subjective” or otherwise easily feigned or exaggerated; and that the law should not provide compensation for “trivial matters” but should foster the growth of “tough hides not easily pierced by emotional responses”. The stigma faced by people with mental illness, including that caused by mental injury, is notorious, often unjustly and unnecessarily impeding their participation, so far as possible, in civil society. While tort law does not exist to abolish misguided prejudices, it should not seek to perpetuate them.

22Where, therefore, genuine factual uncertainty arises regarding the worthiness of a claim, this can and should be addressed by robust application of those elements by a trier of fact, rather than by tipping the scales via arbitrary mechanisms. …

23I add this. As to that first necessary element for recovery (establishing that the defendant owed the claimant a duty of care), it is implicit in the Court’s decision in Mustapha that Canadian negligence law recognizes that a duty exists at common law to take reasonable care to avoid causing foreseeable mental injury, and that this cause of action protects a right to be free from negligent interference with one’s mental health. That right is grounded in the simple truth that a person’s mental health — like a person’s physical integrity or property, injury to which is also compensable in negligence law — is an essential means by which that person chooses to live life and pursue goals. …

24It is also implicit in Mustapha that the ordinary duty of care analysis is to be applied to claims for negligently caused mental injury. With great respect to courts that have expressed contrary views, it is in my view unnecessary and indeed futile to re-structure that analysis so as to mandate formal, separate consideration of certain dimensions of proximity, as was done in McLoughlin v. O’Brian. Certainly, “temporal”, “geographic” and “relational” considerations might well inform the proximity analysis to be performed in some cases. But the proximity analysis as formulated by this Court is, and is intended to be, sufficiently flexible to capture all relevant circumstances that might in any given case go to seeking out the “close and direct” relationship which is the hallmark of the common law duty of care. … [Emphasis added; citations omitted.]

21Given that courts have apparently disregarded Baker by allowing claims in negligence for mental injury so long as the claimant witnesses a person’s injury, death or the aftermath of such injury or death (see the cases described above at paragraph 16 of these reasons), and given that the court in Saadati rejected the “primary/secondary victim” distinction, as well as the view that there are geographic, temporal and relational proximity restrictions that are an absolute limitation on the duty to take reasonable care to avoid causing foreseeable mental injury, it is my view that the plaintiffs’ claims for mental distress following Snowball’s death might succeed even though they are secondary victims who did not witness this sudden, traumatic event. As directed by the Supreme Court of Canada in Saadati, the outcome of the Snowball action should turn on the robust application of the elements of an action in negligence by the trier of fact rather than on the separate application of geographic, temporal, and relational considerations or a distinction between “primary” and “secondary” victims.

22Ornge further submits that the allegations in the Statement of Claim reflect a claim for the death of the deceased rather than a claim for mental injury suffered by the plaintiffs themselves as a result of a breach of duty of care owed by the defendants to them. There is no merit to this submission as the Statement of Claim, particularly paragraphs 34-40 and 50, alleges that a duty of care was owed by the defendants to the plaintiffs to prevent the mental distress that they suffered as a result of Snowball’s death and that such distress was a direct and foreseeable consequence of the defendants’ negligence in causing or contributing to Snowball’s death.

CONCLUSIONS

23I dismiss Ornge’s motion under r. 21.01(1)(b) in respect of both the Snowball action and the Dagenais action. It is not plain and obvious that the plaintiffs’ claim in negligence for mental distress has no reasonable prospect of success.

24The second issue raised by Ornge on this motion, related to whether a claim under s. 61 of the FLA is governed by the limitation period under s. 38(3) of the Trustee Act, was not addressed at the hearing of this motion. Should the parties wish to submit additional written submissions on the question of the applicable limitation period, then they may provide no more than ten pages of submissions by August 3, 2017, and five pages in reply by August 9, 2017. I will dispense with oral submissions on this second issue and shall rely on the written submissions provided by the parties.