Court File and Parties

Court File No.: 16-0513 Date: July 24, 2019 Ontario Superior Court of Justice

Between: Robert MacKinnon and the Estate of Cole MacKinnon Plaintiffs/Respondents – and – Irvine Funeral Home and Chapel, Michael Galbraith and Melissa Chenier Defendants/Moving parties

Counsel: Ian McLean for the plaintiffs/respondents Bryan Laushway for the defendant/moving party Melissa Chenier Tara Lemke for the defendants/moving parties Irvine Funeral Home and Chapel and Michael Galbraith

Heard: July 9, 2019

Justice Sally Gomery

Overview

[1] In this summary judgment motion, I must decide whether a grieving father may recover damages for the psychological injury he suffered as a result of being deprived of the opportunity to attend his son’s funeral.

[2] On May 7, 2016, Robert MacKinnon was woken by police in the middle of the night and told that his son Cole had died in a car crash. Cole was just eighteen years old. Mr. MacKinnon phoned Cole’s mother, Melissa Chenier. Ms. Chenier and Mr. MacKinnon had been separated for many years. Cole had been living with Mr. MacKinnon for the last six years.

[3] Over the next three days, Mr. MacKinnon and Ms. Chenier exchanged texts about funeral arrangements for Cole. They also each spoke with Michael Galbraith, the director of Irvine Funeral Home and Chapel (“Irvine”). Since Cole’s body had been badly burned, it had been taken to a hospital to be formally identified. Once the body was released, Ms. Chenier wanted Cole to be buried in her family’s cemetery plot. Mr. MacKinnon wanted a cremation, so that he and Ms. Chenier could split the ashes. Mr. Galbraith told Mr. MacKinnon that Irvine could not cremate the body unless both he and Ms. Chenier agreed to it.

[4] Based on his texts with Ms. Chenier and his phone conversation with Mr. Galbraith on May 8 and 9, 2016, Mr. MacKinnon expected to be informed when Cole’s body was sent to Irvine, so that a final decision could be reached about his funeral.

[5] On June 13, 2016, Mr. MacKinnon learned that Cole’s funeral had taken place, without him, on June 1st. Mr. MacKinnon was shown a Facebook post of Cole’s grave by a co-worker. Cole had been buried in the Chenier family plot two days after his body had been released by the hospital. Neither Ms. Chenier nor Mr. Galbraith had contacted him to let him know that Cole’s body had been released from the hospital or that a funeral had been arranged.

[6] Mr. MacKinnon says that missing his son’s funeral was a traumatic event for which he has sought medical treatment and counselling. During his discovery, he said: “I understand how death works, understand that you lose people. I just have a problem with having my son’s body stolen. I can’t get that – I can’t get around that.”

[7] Mr. MacKinnon claims that Ms. Chenier, Irvine and Mr. Galbraith are liable for the damages he has suffered as a result of his injury. He has sued them both in his own name and the name of Cole’s estate. He says that the defendants breached oral agreements with him, intentionally inflicted mental distress on him and behaved deceitfully.

[8] The defendants now seek summary dismissal of Mr. MacKinnon’s lawsuit under rule 20 of the Rules of Civil Procedure. They argue that Mr. MacKinnon does not have any evidence that supports the material elements of his claims against them.

[9] On this motion, I must consider three questions: (1) Is this an appropriate case for summary judgment? (2) If so, should I grant judgment for the plaintiffs or the defendants? (3) What are Mr. MacKinnon’s damages?

(1) Is this an appropriate case for summary judgment?

[10] On a summary judgment motion like this one, the first question I must consider is whether I should make a decision on the merits of this case without a full trial. To do this, I must decide if there is a genuine issue that can only be decided only by going to trial.

[11] A full trial is not required if the evidence provided at the summary judgment motion allows the judge to resolve the dispute in a fair and just way, and if summary judgment is a timely, affordable and proportionate procedure. Hryniak v. Mauldin, 2014 SCC 7 ("Hryniak"), at para. 66.

[12] If possible, I should make a summary decision without using the fact-finding powers available to me under rules 20.04(2.1) and (2.2) of the Rules of Civil Procedure. Where it is in the interest of justice to do so, these powers allow me to weigh evidence, evaluate the credibility of witnesses who have provided sworn evidence, and draw any reasonable inference from the evidence. Using the fact-finding powers is in the interest of justice if it “will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole”. Hryniak, at para. 66.

[13] Litigants must put their best foot forward in a summary judgment motion by providing the court with the best available evidence in support of their position. They are not entitled “to sit back and rely on possibility that more favorable facts may develop at trial”. Combined Air Mechanical Services Inc. v. Flesch, 2011 ONCA 764 at para. 56, citing from the reasons of Justice Sharpe in Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 28 O.R. (3d) 423 (Gen. Div.), at p. 434.

[14] In support of their motion, the defendants have filed Mr. MacKinnon’s evidence at discovery in 2017 and affidavits sworn by Mr. Galbraith and Ms. Chenier. Mr. MacKinnon has filed a responding affidavit.

[15] The plaintiffs say that I should not determine the merits of this lawsuit without a full trial. They argue that, in order to decide the central issues in this case, I have to make findings of credibility that I cannot fairly make without hearing directly from the parties.

[16] In my view, credibility issues are not central to this case. I will have to weigh the evidence provided by the parties and draw some inferences. The defendants are not however arguing that I should prefer their version of events over Mr. MacKinnon’s allegations. They say that I can determine the motion without doing this. I agree.

[17] Having reviewed the evidence and the arguments advanced by the parties, I conclude that I can make a just and fair determination of the plaintiffs’ claims on this motion. Most of the evidence is unchallenged; none of the parties has conducted any cross-examinations. Mr. MacKinnon’s action is brought under the simplified procedure provided in rule 75 of the Rules of Civil Procedure. If I can resolve this case fairly on the current record, it is in the interests of justice that I do so, to avoid the necessity of further proceedings.

(2) Should I grant judgment for the plaintiffs or the defendants?

Claims by Cole’s Estate

[18] I agree with the defendants that all claims by Cole’s Estate ought to be dismissed. The statement of claim does not identify any actions taken by Mr. MacKinnon on behalf of Cole’s Estate. There is also no evidence that Mr. MacKinnon had the legal authority to act for the Estate.

Claims by Mr. MacKinnon

(a) Mr. MacKinnon’s claims against Ms. Chenier

[19] Mr. MacKinnon claims against Ms. Chenier for breach of contract, deceit, and intentional infliction of mental distress.

Breach of contract

[20] Mr. MacKinnon alleges that he and Ms. Chenier had an oral agreement that she would follow up with him before finalizing any funeral arrangements for Cole.

[21] An enforceable contract requires evidence of an offer, acceptance and consideration. S & J Gareri Trucking Ltd. v. Onyx Corp., 2016 ONCA 505, at para. 7.

[22] I find that Mr. MacKinnon and Ms. Chenier did not enter into a binding contract. In fact they had no agreement at all. Ms. Chenier’s text messages indicated, initially, that she might be open to a cremation of Cole’s body. In her later messages, however, Ms. Chenier did not agree to any particular arrangement or even agree to keep Mr. MacKinnon involved in planning Cole’s funeral.

[23] Mr. MacKinnon had a five minute phone call with Ms. Chenier on May 7, 2016, right after the police arrived to tell him about Cole’s car accident. The only other direct communication they had during this period was by text. At his discovery, Mr. MacKinnon acknowledged that Ms. Chenier had also called him multiple times after their first call, but he “wasn’t up for talking” so texted her instead.

[24] In the texts on May 7 and 8, Mr. MacKinnon (“RM”) and Ms. Chenier (“MC”) had their first discussions with respect to funeral arrangements for Cole. Ms. Chenier wanted Cole buried in the cemetery where her mother Helen had been buried and where the Cheniers had another available burial plot. Mr. MacKinnon knew this because he had discussed potential funeral arrangements with Brian Chenier, Cole’s grandfather, on May 7. Mr. MacKinnon wanted to have Cole’s body cremated so that both he and Ms. Chenier could split the ashes.

[25] When these texts were exchanged, Mr. MacKinnon had already made arrangements for Cole’s body to be transported to Scotland Funeral Home (“Scotland”), another local funeral parlour. In their text messages on May 7 and 8, however, he and Ms. Chenier decided that the body should instead be sent to Irvine, which had cremation facilities. Here are the relevant excerpts from the May 7 and 8 texts: [5]

May 7 at 7:20 p.m. MC: Hey Rob. Can we set up a time to meet tomorrow morning? I would like to figure out what we want to do… I need to have a plan. RC: I’ll have to let you no tomorrow only think I want is Cole to be happy your dad offered a spot in bv but my gut tells me he would want to be here at home so I no you all don’t think much of cremation but that way he can be in both places as he was in life I don’t want to fight just want what Cole would want we will work this out tho just hope we can come to something that works for both our needs MC: I just need a place for me and our family to go and visit him. And it can’t be too far away! Can we get together and talk? RC: You can think about this I’m good with cremation and I’ll bring part home you guys keep part with you all that way Coles here and also with Helen sry but I’m not up to face to face right now like I said I’ll text you tomorrow (…) If that fine I’ll call Scott lands off and have Irving funeral pick Cole up

May 8 at 10:06 a.m. MC: Morning! Can you call Scotland’s and cancel them picking up Cole? The crematorium is at Irvine’s… (…) I can go to Irvine’s and make arrangements as soon as you call Scotland’s and cancel them. Please let me know ASAP. Thanks. RM: I would like ashes for our family to do our own service for cole. MC: Ok, I understand that … But he still has to go to Irvine’s to be cremated anyways. That is where Scotland’s would send him anyways. So let’s eliminate an extra step. He needs to be cremated first for you to have ashes for a service.

[26] In her messages on the morning of May 8, Ms. Chenier actively encouraged Mr. MacKinnon to believe that she would consent to cremation. He told her that this was his preference and said: “If that fine I’ll call Scott lands off and have Irving funeral pick Cole up”. Ms. Chenier responded the next morning by asking him to “call Scotland’s and cancel them picking up Cole”. She noted Irvine had a crematorium and Scotland did not. Her statements that Cole’s body “still has to go to Irvine’s to be cremated anyway” and that Cole’s body “needs to be cremated first for you to have ashes for a service” imply that she is agreeing or will agree to Mr. MacKinnon’s proposal.

[27] Following this exchange, Mr. MacKinnon texted Ms. Chenier at around noon on May 8 to confirm that Scotland would no longer be picking up Cole’s body.

[28] The tone of the texts changed on May 9. Mr. MacKinnon had by this time received a message from Ms. Chenier’s son, Tyson, expressing the view that the idea of cremation was “disgusting” and “disrespectful”.

May 9 at 8:39 a.m. MC: Good morning. We HAVE to get together this morning and figure this out. Our child cannot lay in Ottawa without us having a plan for him. Please accept my apologies for Tyson’s behaviour towards you, he is grieving too and doesn’t handle his emotions well. Please remember he lost his brother. I am available all morning and will meet you wherever you want me to. Please let me know as soon as possible. RM: Can’t to day dealing with ins and other things and Cole won’t be release untile mid week as they can’t a identify him as you all are aware (…) [F]or you all to say that for me wanting to cremate Cole was disgusting is bullshit my son is all ready there and now you all want to but him in a box … no bugs and not in a cold dark hold sorry we can’t come to a agreement.

[29] Ms. Chenier responded by insisting that funeral arrangements had to be made immediately:

MC: This has to be done today Rob! Yes, he won’t be released until later this week, but arrangements have to be made today! RM: No they don’t have to be done today … they will hold him until the two adults can come to an agreement … if an agreement cannot be made … then the other action is court … Cole is an adult of 18 without a will. MC: Yes, they do. I will whatever I need to. RM: Can’t do nothing without the other parent signature already know that And I have all the important papers that are needed … enough of this bs MC: I am meeting with Irvine’s today. I would appreciate you with me. If you want our son to lay in a freezer until we come to an agreement, I’m sure Cole would appreciate that. That is not dignifying to him at all. Push your feelings aside and give this family peace. I will do WHATEVER needs to be done. It would be easier and respectful to Cole to have this done amicably. Cole would absolutely want that. He is up there saying “oh my God you guys.” You know it!

[30] Ms. Chenier’s first two messages imply that no arrangements could be finalized until she and Mr. MacKinnon had a meeting. In her final message, however, she said that she was going ahead with her meeting with Irvine, that she would do whatever needed to be done and that it would be “easier and respectful to Cole to have this done amicably”. When a person says that a certain course of action would be easier, this leaves open the possibility of another, more difficult, course of action.

[31] Based on all of the messages from May 7 to 9, Mr. MacKinnon and Ms. Chenier did not reach any agreement. Mr. MacKinnon knew this; he wrote: “sorry we can’t come to a agreement”. Ms. Chenier had not accepted Mr. MacKinnon’s proposal for cremation. She did not correct him when he expressed the view that Irvine would hold the body “until the two adults can come to an agreement”. But she did not commit to seeking his input or approval before making funeral arrangements. In fact she expressed the opposite intention: she would do “whatever needed to be done” if he failed to participate in the planned meeting with Irvine later that day.

[32] In the absence of any agreement between Mr. MacKinnon and Ms. Chenier, a court could not find that she is liable for a contractual breach.

[33] I accordingly dismiss Mr. MacKinnon’s claim for breach of contract against Ms. Chenier.

Deceit

[34] Mr. MacKinnon claims against Ms. Chenier for deceit “in not advising [him] as events evolved despite assurances that [he] would be given appropriate input”. I conclude that he has not pointed to any evidence that could establish one of the key elements of deceit, a false misrepresentation.

[35] Deceit is also known as civil fraud. In Midland Resources Holding Limited v. Shtaif, 2017 ONCA 320, 135 O.R. (3d) 481, at para. 162, the Court of Appeal held that a plaintiff suing for deceit must prove: (i) a false representation of fact by the defendant to the plaintiff; (ii) knowledge that the representation was false, absence of belief in its truth, or recklessness as to its truth; (iii) an intention the plaintiff act in reliance on the representation; (iv) the plaintiff acts on the representation; and (v) the plaintiff suffers a loss in doing so.

[36] As noted recently by my colleague Justice Hainey, the first element of fraudulent misrepresentation must be the representation of an existing fact, “not a forecast, estimate or an opinion”. Business Development Bank of Canada v Experian Canada Inc., 2017 ONSC 1851, at para. 140.

[37] Having reviewed the text messages I have already set out above, I cannot find any false misrepresentation of fact by Ms. Chenier. She expressed her opinion about what she and Mr. MacKinnon should do and stated her intentions if he did not accept her opinion.

[38] I dismiss Mr. MacKinnon’s claim for deceit against Ms. Chenier.

Intentional infliction of mental distress

[39] Mr. MacKinnon alleges that Ms. Chenier is liable for intentional infliction of mental distress “knowing that her actions would cause emotional pain to [him] and [being] mindless of the consequences of her actions”. Again, I find that Mr. MacKinnon has not provided any evidence that could, if accepted, satisfy all of the elements of this cause of action.

[40] A defendant is liable for intentional infliction of mental distress if he engages in flagrant and outrageous conduct calculated to produce harm, which results in a visible and provable injury such as a recognized psychiatric illness. Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, 120 O.R. (3d) 481 ("Boucher"), at para. 41. The plaintiff must show that the defendant subjectively intended to injure the plaintiff or that he knew that the injury was “substantially certain to follow”. Piresferreira v. Ayotte, 2010 ONCA 384, 319 D.L.R. (4th) 665, at paras. 78-79; Colistro v. Tbaytel, 2019 ONCA 197 ("Colistro"), at para. 15.

[41] I do not accept the defence argument that Mr. MacKinnon has failed to prove damages because he has not served an expert report. Mr. MacKinnon has produced records from his family physician and a social worker at a community health centre. Dr. Laforty’s records show that he has been treating Mr. MacKinnon for depression since August 2016. A letter from Ms. Giffin dated October 24, 2018 indicates that Dr. Laforty referred Mr. MacKinnon to her in February 2018 for counselling for an intense grief reaction of depression and anger. This reaction resulted from two traumatic events: the death of his son, and “not being invited to his son’s funeral”. This evidence, along with Mr. MacKinnon’s evidence about his reaction to missing Cole’s funeral, could be sufficient to establish a mental injury and damages, even in the absence of an expert opinion. Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543 ("Saadati"), at paras. 2 and 40.

[42] Ms. Chenier states in her affidavit that she did not intend to cause grief or mental anguish to Mr. MacKinnon. She was simply making the arrangements that corresponded with her own wishes for Cole’s funeral.

[43] In my view, Ms. Chenier must have realized that Mr. MacKinnon would be very upset if his son’s funeral took place without him. She knew, based on his text messages, that he was overwhelmed with grief, to the point where he could not talk on the phone. She also knew that the arrangements for Cole’s funeral were important to him. She knew that he had thought a lot about what Cole would want, even if she disagreed with his views. She knew that he was under the impression that, until they reached an agreement, or there was a court order, nothing would happen.

[44] Despite knowing all of this, Ms. Chenier took no steps to ensure that Mr. MacKinnon was notified when their son’s body was released, or that he knew when the funeral had been scheduled on June 1st. She did not bother, between June 1st and June 13, to tell him that a funeral had taken place. According to Mr. MacKinnon, he was not even sure exactly where Cole was buried. Ms. Chenier’s failure to take any steps to communicate with Mr. MacKinnon was callous.

[45] But there is more. When Mr. MacKinnon was shown the Facebook posting on June 13 and began taking steps to find out if, in fact, the funeral had taken place without him, Ms. Chenier sent him this message:

Cole was laid to rest with his Gramma on June 1st. Remember, you didn’t want to meet up with me to discuss arrangements, so we took care of it.

[46] Ms. Chenier did not apologize to Mr. MacKinnon for failing to notify him that Cole’s body had been released, or express sympathy for the fact that he had missed the funeral. Her message reads as self-satisfied and even taunting.

[47] I have also considered Mr. MacKinnon’s testimony, during his examination for discovery, about his conversation with Dr. Kennie, the coroner, on June 13:

Q: What did you discuss with Dr. Kennie? A: If he knew if my son’s body was released from Ottawa? Q: And what were you told? A: Yes, it was. Q: What else was discussed? A: I told him what I found out. He was shocked and said that Melissa had told him not to contact me, that she would contact me.

[48] If I accepted that Ms. Chenier told Dr. Kennie not to contact Mr. MacKinnon about the release of Cole’s body, I would have to conclude that she actively tried to exclude Mr. MacKinnon from participating in the funeral arrangements. This could allow me to infer that she intended to harm him.

[49] I cannot, however, give any weight to Mr. MacKinnon’s testimony about what Ms. Chenier supposedly said to Dr. Kennie. It is hearsay. Even if Mr. MacKinnon is telling the truth about his conversation with the coroner, this does not mean that Dr. Kennie accurately reported Ms. Chenier’s words to Mr. MacKinnon.

[50] The two people who could shed light on the discussion between Ms. Chenier and Dr. Kennie are Ms. Chenier and Dr. Kennie. Unfortunately, I have no evidence on this topic from either of them. Ms. Chenier was not cross-examined. She has apparently been examined for discovery, but no transcript was filed in response to the defendants’ motion. There is no affidavit from Dr. Kennie, or any indication that attempts have been made to get his evidence.

[51] I must assume that all of the parties have filed the evidence they have or can obtain on the motion. In the absence of any evidence from Ms. Chenier or Dr. Kennie with respect to their conversation about the release of Cole’s body, I cannot take Mr. MacKinnon’s hearsay evidence about Ms. Chenier’s alleged direction to Dr. Kennie into account.

[52] Leaving this hearsay evidence aside, then, does the evidence show that Ms. Chenier engaged in conduct calculated to injure Mr. MacKinnon? Is her failure to let Mr. MacKinnon know about the funeral plans, together with her taunting message on June 13, enough to establish intentional infliction of mental distress?

[53] Intentional infliction of mental distress requires more than mere knowledge that an action might cause an injury. The defendant’s action must be flagrant and outrageous conduct calculated to produce harm. In the words of the Court of Appeal: “The defendant must have intended to produce the kind of harm that occurred or have known that it was almost certain to”. Boucher, at para. 44. If the plaintiff does not have any evidence that the defendant actually intended to injure the plaintiff, establishing that the injury was substantially certain to follow is challenging. It requires more than evidence of foreseeability or reckless disregard. Colistro, at para. 26.

[54] In her affidavit, Ms. Chenier states that she stopped exchanging texts with Mr. MacKinnon on May 9 when he sent her a message accusing her of treating Cole badly before his death. Ms. Chenier found these comments extremely hurtful. According to her affidavit, she told Irvine that she had attempted to communicate with Mr. MacKinnon “and would not be doing so again”. She expected that Mr. Galbraith would reach out to him, and told him that she did not object to Mr. MacKinnon attending the funeral. She was surprised when he did not show up for it.

[55] Because Ms. Chenier was not cross-examined on her affidavit, her statement that she believed that Irvine would tell Mr. MacKinnon about Cole’s funeral was not challenged. There is no evidence that she told Mr. Galbraith not to contact Mr. MacKinnon. On the contrary, her evidence is that she expected that he would do so.

[56] Finally, and most importantly, Mr. MacKinnon’s own evidence was that he expected Mr. Galbraith, not Ms. Chenier, to contact him once Cole’s body was released.

[57] Given the evidence on the motion, I cannot find that Ms. Chenier intended that Mr. MacKinnon would miss Cole’s funeral. I must therefore dismiss Mr. MacKinnon’s claim for intentional infliction of mental distress against Ms. Chenier.

(b) Mr. MacKinnon’s claims against Mr. Galbraith and Irvine

[58] Mr. MacKinnon claims against Mr. Galbraith and Irvine for breach of contract, deceit and intentional infliction of mental distress. He is no longer pursuing any claim for breach of any statutory duties.

Breach of contract

[59] Mr. MacKinnon says that he and Mr. Galbraith had an oral agreement and Mr. Galbraith breached it. On the evidence, I conclude that Mr. MacKinnon’s claim cannot succeed. Although he and Mr. Galbraith had an agreement, it was not legally enforceable.

[60] On May 8, Mr. MacKinnon contacted Irvine about the transfer of Cole’s body and spoke with Mr. Galbraith. [13] In his affidavit in response to the summary judgment, Mr. MacKinnon states that, based on this discussion, “it was my understanding that I would be consulted before any final decision was made as to the disposition of the remains of my son as no last will and testament had been made by my son”. He says that Mr. Galbraith “advised me he would text or call me when he was given information that Cole’s body was ready to be released. I had no reason to doubt him and concurred in that suggestion”.

[61] Mr. McKinnon’s affidavit evidence is consistent with his evidence at discovery:

Q: During the time between May 9th and June 13th, what was your understanding of what was happening during that time? A: Michael [Galbraith] was going to call me for the release of him [Cole]. Q: And why did you think Michael was going to call you? A: Because that was his words to me that when he got the word of the release of my son, if he could call me or text me and we could arrange to meet and that was May 8th.

[62] In his affidavit, Mr. Galbraith does not deny that he promised to contact Mr. MacKinnon when Cole’s body was released.

[63] The evidence accordingly supports a finding that Mr. MacKinnon and Mr. Galbraith – and, by extension, Irvine – had an agreement. Mr. Galbraith offered to tell Mr. MacKinnon when Cole’s body was going to be released by the hospital. Mr. MacKinnon accepted this offer. The only remaining question is whether there was any consideration that would transform this promise into an enforceable contract.

[64] Irvine’s counsel concedes that consideration does not need to involve a direct payment of money from one party to the other. Two different forms of consideration could arguably underlie an enforceable contract between Mr. MacKinnon and Mr. Galbraith or Irvine: the transfer of Cole’s body to Irvine, and the contract for funeral services.

[65] The transfer of Cole’s body to Irvine could not have been consideration for the agreement between Mr. MacKinnon and Mr. Galbraith. Their discussion took place after Mr. MacKinnon had already agreed that Cole’s body would be transferred to Irvine. Mr. MacKinnon’s motivation for the transfer was the possibility of cremation, not any promise made by Mr. Galbraith.

[66] The second possibility is that Mr. Galbraith made the promise to Mr. MacKinnon in consideration of an eventual contract for burial services. In this scenario, Mr. Galbraith agreed to notify Mr. MacKinnon when Cole’s body was released so that, when the time came, Mr. MacKinnon would sign a contract with Irvine.

[67] There is however no evidence that Mr. MacKinnon ever had any discussion with Mr. Galbraith about paying for funeral services. In a text message to Ms. Chenier on May 8, Mr. MacKinnon told her that he would be “paying for this to be done for Cole”. In his affidavit, however, Mr. Galbraith states that Ms. Chenier was the only one who contacted him to make final arrangements for Cole. It was Ms. Chenier who signed a contract with Irvine on June 1st, 2016, the day the funeral was held.

[68] On this evidence, I cannot find that the contemplation of a funeral services contract between Mr. MacKinnon and Irvine could have been consideration for Mr. Galbraith’s promise to notify him once Cole’s body was released. As a result, the breach of contract claim against Mr. Galbraith and Irvine must be dismissed.

Deceit

[69] Mr. MacKinnon claims against Irvine for “deceit in not advising [him] as events evolved despite assurances that [he] would be given appropriate input”.

[70] I have already found that Mr. Galbraith promised to tell Mr. MacKinnon when Cole’s body was released, and that he failed to do so. This was not a false representation of fact but an undertaking or prediction. An inaccurate or dishonest prediction may be the basis for a claim in contract or a claim in negligence, in the right circumstances. But Mr. Galbraith’s promise cannot be the basis for a claim in deceit.

[71] I therefore conclude that Mr. MacKinnon’s claim against Irvine for deceit must be dismissed.

Intentional Infliction of Mental Distress

[72] Mr. MacKinnon also claims against Mr. Galbraith and Irvine for intentional infliction of mental distress.

[73] In his affidavit, Mr. Galbraith says that he was “under the impression” that Ms. Chenier would tell Mr. MacKinnon about the arrangements. He makes this statement even though he admits, in the same affidavit, that Ms. Chenier told him there was “no communication” between her and Mr. MacKinnon.

[74] Mr. Galbraith’s evidence on this issue does not make sense. If Ms. Chenier told him that “there was no communication between her and Robert”, why would he think that she had told Mr. MacKinnon about his meeting with Ms. Chenier on May 31st? He says that he told both Mr. MacKinnon and Ms. Chenier that they needed to agree for cremation to occur and that he would “not get in the middle of their disagreements”. But simply telling Mr. MacKinnon that his son would be buried the next day would not be getting in the middle. It would be a minimal courtesy to any grieving parent. It was moreover precisely what Mr. Galbraith had told Mr. MacKinnon he would do.

[75] Mr. Galbraith’s conduct after the funeral was breathtakingly insensitive. After Mr. MacKinnon learned about Cole’s funeral on June 13, he phoned Irvine. Mr. Galbraith confirmed that a funeral had taken place almost two weeks earlier. According to Mr. MacKinnon, Mr. Galbraith laughed when he found out how Mr. McKinnon had learned about Cole’s funeral:

Q: Did you discuss with him the fact that you had not been advised of the burial? A: Yes. Q: And what did he say? A: He said that Melissa wasn’t onboard with the cremation. Q: What else did he say? A: He went on asking how I found out. I told him Facebook. He laughed and he said what is done is done.

[76] In his affidavit, Mr. Galbraith does not refer to this conversation. He does not deny that he laughed when he was told that Mr. MacKinnon had found out about Cole’s funeral through a Facebook post or that he flippantly said that “what is done is done”.

[77] Mr. Galbraith defends his failure to communicate with Mr. MacKinnon by saying that he is not legally required to notify near relatives about burials. That is a poor excuse for his conduct, in my opinion.

[78] I infer that, once Ms. Chenier had signed a contract for $10,000 in funeral services, Mr. Galbraith simply did not want to bother dealing with Mr. MacKinnon. He also wanted to avoid any challenge to the arrangements that had already been made. In so doing, Mr. Galbraith put Irvine’s commercial interest, and what was easiest for him at the time, ahead of any consideration for a grief-stricken parent. His reaction to Mr. MacKinnon’s phone call on June 13 betrays a chilling lack of empathy. His behaviour was the antithesis of what a person would want to see in a funeral director.

[79] The question however I must again confront is whether Mr. Galbraith engaged in flagrant and outrageous conduct “calculated to produce harm”. Is there evidence that Mr. Galbraith’s conduct was intended to injure Mr. MacKinnon or that he knew that an injury was almost certain to occur?

[80] I find, on the evidence, that Mr. Galbraith’s conduct was flagrant and outrageous. I cannot, however find that he intended it to result in a psychological injury to Mr. MacKinnon or was certain it would occur. I have no evidence that Mr. Galbraith knew about Mr. MacKinnon’s close relationship with his son or his strong desire to be involved in a funeral that did not involve cremation. They had one or two short phone conversations. Their discussions focussed on getting practical information, such as Cole’s social insurance number, and the need to get Ms. Chenier’s consent for a cremation.

[81] There is no evidence that Mr. Galbraith intended for Mr. MacKinnon to suffer an injury or that, on the information known to him, an injury was substantially certain to result from his actions. The evidence certainly establishes that Mr. Galbraith was indifferent to the impact of his conduct. But mere recklessness is not enough without some evidence that he intended to cause psychological harm to Mr. MacKinnon or was certain that missing his son’s funeral would cause him this type of injury.

[82] I conclude that Mr. MacKinnon’s claim for intentional infliction of mental distress against Mr. Galbraith and Irvine must be dismissed.

What are Mr. MacKinnon’s damages?

[83] The evidence on Mr. MacKinnon’s damages consists of his description, in his examination for discovery and affidavit, of his reaction after he learned that he had missed Cole’s funeral; Dr. Laforty’s record; and a brief letter from Ms. Giffin, the counsellor Mr. MacKinnon began seeing since February 2018.

[84] Assessing damages in a case like this is extraordinarily difficult. The court must distinguish between the shock and grief that Mr. MacKinnon suffered as a result of Cole’s untimely death from his psychological injury as a result of missing the funeral. The parties have not submitted any caselaw that involve a discussion of damages for mental distress except for Saadati v. Moorhead, 2017 SCC 28. The facts in that case were quite different than the facts here, so it is not very helpful.

[85] In these circumstances, had I concluded that the defendants were liable, I would have directed a mini-trial on damages under rule 20.04(3) of the Rules of Civil Procedure.

Conclusion

[86] Cole’s death dealt a huge loss to Mr. MacKinnon. The discovery that he missed his funeral was a further blow. I can understand why Mr. MacKinnon blames Ms. Chenier and Mr. Galbraith for being deprived of an opportunity to say good-bye to his son. They did not behave well. Ms. Chenier was also dealing with Cole’s death, and this may explain why she acted as she did. Mr. Galbraith was, on the evidence, motivated by nothing more than his own self-interest and a lack of any sensitivity to a grieving father. His conduct was unscrupulous and, in my view, inconsistent with his ethical obligations as a funeral director. But not all bad behaviour gives rise to legal liability.

[87] The defendants’ summary judgment motion is granted. The plaintiffs’ action is dismissed.

[88] I would encourage the defendants to consider whether they wish to seek costs. If they decide to do so, they may each submit a memorandum on costs no longer than three pages in length, attaching a bill of costs, by July 31st, 2019. Mr. MacKinnnon will have until August 19, 2019 to provide a memorandum of up to three pages and an attached bill of costs.

Justice Sally Gomery Released: July 24, 2019