Court File and Parties

COURT FILE NO.: CV-19-0004 DATE: 2024-01-03

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Tammy Aube Plaintiff

– and –

Manitoulin Health Centre Defendant

Counsel: C. Rubin and J. Elyk for Ms. Aube L. McCullogh and M. Miklaucic, for the defendant

HEARD at Gore Bay: October 23-26, 2023

BEFORE: A.D. Kurke J.

REASONS FOR JUDGMENT

Overview

[1] Tammy Aube (“Ms. Aube”) stands as a model of spousal love and devotion. Her care for her terminally ill husband Shawn Aube (“Shawn”) over the final five years of his life is little short of heroic. This case offers justification for such a description.

[2] On December 6, 2017, Ms. Aube, a registered nurse, tripped and fell in the entrance of the Manitoulin Health Centre (the “Health Centre” or the “hospital”) in Mindemoya, Ontario, on Manitoulin Island. There is no dispute between the parties that Ms. Aube’s “trip and fall” was caused by the defendant’s negligence in allowing problems with its floor to present a hazard to those entering the premises.

[3] What are in issue are the damages that Ms. Aube claims for her injuries from this trip and fall. Ms. Aube had been off work since 2012 to care for her terminally ill husband, her “soul mate”, and she claims that physical injuries that she sustained in this “trip and fall” prevented her from fulfilling Shawn’s wish that he be able to die at home, because she could no longer take care of him there. The feeling of guilt that Ms. Aube carries because of her perceived failure figures in the sustained psychological trauma for which she seeks compensation from this court.

[4] For the following reasons I am unable to find the defendant liable for the plaintiff’s injury, which I cannot find to have been caused by the trip and fall, and which I find, in any event, to be too legally remote from the trip and fall.

Facts

[5] On the trial of this matter, the parties prepared an agreed statement of facts, offered books of exhibits, and relied also on witness testimony.

Background to events in December 2017

[6] Ms. Aube was born October 31, 1967. She and her husband Shawn were together from a young age and had two children and four grandchildren together. Ms. Aube described Shawn as her soulmate. Shawn’s sister Kimberly Aube described Shawn’s marriage to Ms. Aube as a “once in a life situation”. The two were inseparable. Kelsey Aube, wife of the plaintiff’s son Fred, described the marriage as very loving and supportive from the time she met Ms. Aube and Shaun in 2016.

[7] Ms. Aube has been a registered nurse since 1989. She and Shawn both worked as nurses at the Manitoulin Health Centre in Mindemoya, Ontario.

[8] Ms. Aube has had her own health and personal issues. She was diagnosed with breast cancer in 2005. She underwent a bilateral mastectomy and reconstructive surgery. Shawn was by her side throughout. One of the plaintiff’s brothers died in 2008, and another in 2014. In or around 2016, the plaintiff’s breast implants ruptured, requiring further reconstructive surgeries and additional complications.

[9] Ms. Aube and Shawn lived together in a three-bedroom bungalow that Shawn designed, located on Lake Kagawong. They moved into this property in October 2006 after the plaintiff’s “breast cancer scare.” Shawn was very attached to it.

[10] Shawn was diagnosed with renal cancer in 2010. His cancer was treated but later recurred. In 2012, Shawn’s condition was deemed terminal. Ms. Aube came to believe that Shawn’s cancer could have been caught and treated earlier but that a doctor had missed the diagnosis. Ms. Aube was very angry at the doctor, and sued, but when the doctor himself died of cancer at a young age, Ms. Aube felt guilty for wishing “terrible things” about him.

[11] Ms. Aube continued working up through Shawn’s terminal diagnosis in 2012. She began receiving long-term disability benefits in December 2012 for depression and anxiety, as she found it too difficult to concentrate at work. In 2014, Ms. Aube also began collecting CPP benefits. Her pension continued to accrue through the Healthcare of Ontario Pension Plan (“HOOPP”). She devoted herself to being with and caring for Shawn.

[12] Ms. Aube started receiving weekly counselling services from Gerlinde Goodwin of the Manitoulin Family Health Team in 2012. She also consulted with psychiatrist Dr. Rodie at the Centre for Addiction and Mental Health (“CAMH”) starting in 2015, who would mainly just adjust her medication. Before Shawn passed, Ms. Aube had weekly or bi-weekly calls with CAMH and answered questions on a questionnaire dealing with her levels of depression and anxiety. She recalled answering on one occasion that “it would be easier if I wasn’t here.”

[13] Ms. Aube did not forget Shawn’s attentiveness to her when she went through her own cancer treatment. She “wanted to return the favour.” It was Shawn’s wish to die at home because of his connection to it, and Ms. Aube wanted to accommodate that wish. Kimberly Aube confirmed that it was her brother Shawn’s wish to die at home where he was at peace. Because she was worried that it might not be possible, she recorded videos for him as she drove up to his house, and of outside views from inside the house for Shawn to enjoy.

[14] Dr. Jeeves was the plaintiff’s family doctor until his retirement in 2018. In her meetings with Dr. Jeeves before Shawn’s death, Ms. Aube reported suffering from memory issues, poor sleep, social anxiety, poor concentration, and poor appetite. Dr. Jeeves supported her applications for benefits and pension accrual.

[15] On November 4, 2017, Shawn was referred by Community Care Support Services, which had assessed his palliative care needs, for a hospice suite at the hospital. At home he also had assistance, including physiotherapy. Shawn was in and out of hospital.

[16] Assistance for Shawn’s care at home was set up by witness Colleen Mailloux. She had had her first interaction with the Aube family November 7, 2017, and arranged for support services at the Aube home, including two visits per week of nursing care for palliative and wound care, and two visits per week of PSWs, although there was a waiting list. The number of visits was coordinated with what the family wanted. Medical equipment and supplies were also arranged for times that Shawn was at home.

[17] Prior to December 6, 2017, the plaintiff’s medical history, in addition to breast cancer, included high blood pressure, gastric reflux, depression and anxiety, for all of which Ms. Aube was medicated. She acknowledged that her health declined in the period leading up to Shawn’s death.

December 6, 2017

[18] On December 6, 2017, Shawn was again an in-patient at the hospital. Ms. Aube was driven to the hospital by her son Austin to be with Shawn. As she waited for Austin in the doorway of the hospital, looking out into the parking lot, she stepped backwards because of a blast of cold air and to let the doors close. One of her heels caught in a broken or cracked tile, and the other slid on a mat covering the entrance tiles. She fell to the ground on her buttocks, also hitting her elbows and the back of her head on the floor. She testified that her buttocks and elbows and the back of her head were bruised and hurt and her shoulders were sore. Austin, a primary care paramedic, was in the hospital parking lot when he heard his mother “yelp”. He “scooped his mother up” and noticed a broken floor tile. Ms. Aube went in to see Shawn.

[19] The defendant admits liability for negligence in the trip and fall.

[20] Ms. Aube testified that the following day she went to report the incident to staff, as she was concerned that someone else could get hurt. Ms. Aube initially thought that the date of the trip and fall was December 11, but knows that she spoke with Michelle Noble the day after she fell. Ms. Noble, a registered nurse at the hospital, completed an incident report on December 7. Ms. Noble noted that Ms. Aube denied any injuries, but also marked a box indicating “minor injuries”, without any details given. Ms. Noble did not give Ms. Aube the form to look over after filling it out.

[21] Ms. Noble had been a co-worker and friend of Ms. Aube since the late 1980s. She was also Shawn’s friend and knew them as well from the community. In her testimony, Ms. Noble stated that Ms. Aube denied being hurt, but said that she was reporting the fall because she did not want anyone else to get hurt. Ms. Noble marked the “minor harm” box but testified that she should have marked the “no harm” box, as that is what Ms. Aube had told her. Ms. Aube was walking and talking normally.

[22] In her testimony, Ms. Aube insisted that she suffered pain from the fall, but there were “no fractures or tears.” She stated that she told Ms. Noble that she had shoulder pain. She did not seek any medical attention for any injuries from the accident, and did not consult Dr. Jeeves about it, but she testified that she “maybe took” Tylenol or Advil for her pain. Her mind was focused on caring for Shawn. The pain resolved “within three weeks.”

[23] On December 8, 2017, Shawn was transferred to a hospice suite in the hospital. From December 8 until December 22, Ms. Aube provided Shawn’s care when nursing was not in the room, including morning care, hygiene care such as bathing, and giving him medication and monitoring the medication’s effectiveness. Ms. Aube stayed with Shawn every night that he was in the hospital. There were places for their sons to sleep and pets were permitted. Ms. Aube slept in Shawn’s bed. Her goal was to get Shawn home.

[24] Ms. Aube testified that after the fall she suffered pain when trying to reposition Shawn and “toilet” him. She helped the nurses at the hospital with bathing and hygiene, and did so in her home, but “mostly it was me”. Towards the end of the hospice stay it was Ms. Aube and another nurse caring for Shawn; Ms. Aube agreed that “some things you need two people to do for safety,” though equipment can help.

[25] Sheri Hore was a long-time friend and nurse colleague of Ms. Aube at the hospital, and a friend of the Aube family. She first learned about the plaintiff’s trip and fall years afterwards when a co-worker spoke of being questioned about it. She never heard about it from the plaintiff. She visited Shawn and Ms. Aube in the hospital many times between December 6 and December 28, 2017. She observed Ms. Aube to have a lot of family support in the hospice suite. She recalled that Shawn’s things had been left in the hospice suite when he left the hospital on December 22 in case he needed to come back. She came on duty at the hospital the morning of December 28, just after Shawn had passed away there.

[26] Katelyn Marshall is also a registered nurse who has worked at the hospital for over six years. She attended to Shawn’s care as a palliative patient. He was bedbound towards the end of his time there. Nursing staff and the family attended to Shawn’s comfort care and symptom management, including for pain, fluid retention, bed repositioning, and medication such as hydromorphone. End stage cancer is very painful, and hydromorphone helps with restlessness and agitation.

[27] According to Ms. Marshall, hospital policy requires two nurses to reposition a patient for patient and staff safety. Shawn was quite large and tall, and it becomes more difficult to move someone as the illness gets further along. Staff can suffer lower back strain if they try to move a patient alone. Boosting in a bed “always takes two people.” In theory, one person can roll a patient, but that is not allowed by the hospital and its insurer; Ms. Marshall was clear: “I wouldn’t do it.” That policy would not apply to private family members.

[28] It was decided that Shawn would go home for Christmas. Ms. Mailloux met with Ms. Aube on December 19, 2017. The Community Care service provider Bayshore was contacted, and Ms. Mailloux was told that PSW staffing could be an issue on Manitoulin Island around Christmas. Ms. Mailloux investigated whether Shawn could return to hospital if home care failed, though she understood that he wanted to die at home. Ms. Mailloux arranged for daily nursing and PSW attendance.

[29] Carol Stover, from the Local Health Integration Network (“LHIN”), spoke with Shawn on December 19, and heard from Shawn that he accepted the hospice and found it comfortable, and liked that some of his pets could be with him there. In cross-examination Ms. Stover would not agree that hospice care was not as good as home care. Ms. Aube told Ms. Stover that she hoped Shawn could return home.

[30] On December 22, 2017, Shawn left the hospice suite to go home, technically on a three-day pass, for what was expected to be his last Christmas. Ms. Aube testified that the intention was for Shawn to die at home. The purpose of the visit being made on a “pass” was to reserve the hospice suite just in case. Shawn was transferred home by ambulance. A “computerized ambulatory delivery device” to deliver medication (the “CADD pump”) was initiated by Bayshore. There was a waiting list for PSW service.

[31] Shawn’s family also took home a sit-to-stand lift for transfers, an elevated toilet seat, a walker, a shower bar, and Shawn’s medications. Daily home nurse care was coordinated by the LHIN to tend to the CADD pump and attend to dressing and wound care. PSWs were also coordinated to assist. In his evidence, however, Austin Aube pointed out that there was only home care on the first day; he found the assistance “inadequate”.

[32] Kimberly Aube described Ms. Aube as “shutting down” and “hyper focused” on Shawn during the period of the pass. Ms. Aube told her about the trip and fall and said that she was hurt and had trouble repositioning Shawn. Gradually, other family members found out about the trip and fall.

[33] Christmas was stressful for Ms. Aube and her grief at knowing she would soon lose her husband only made it more so. In the home, Shawn’s care was provided by Ms. Aube. Shawn did not want his adult children to help, even though Austin is a trained paramedic. Tammy Aube, Kimberly Aube, and the Tammy’s son Fred testified that it was a matter of “dignity” for Shawn; he did not want his children or other family members to remember him “in a diaper.”

[34] On December 24, 2017, Ms. Aube called the hospital to advise that Shawn would not be returning to the hospice suite, even though she was having a lot of pain in her back and shoulders. She had to pull on Shawn to move him to reposition pillows around him and get him off his back to prevent pressure sores, and she had initially been able to do it. Shawn told Kimberly Aube that he was happy to just stay in his room.

[35] On December 27, 2017, Ms. Aube contacted the LHIN to inquire about increasing Shawn’s pain medicine infusion, as he was struggling with pain. The LHIN arranged an extra nurse visit to adjust the CADD pump, which was locked against unauthorized adjustment. When Kimberly Aube arrived back at the home after Christmas, Shawn was delirious and “pretty much unconscious,” but moaning. Austin observed that Shawn could not get out of bed on his own.

[36] Kimberly and Kelsey Aube saw Tammy Aube struggling to reposition Shawn. Kelsey witnessed Shawn’s distress when Ms. Aube called for one of her sons to help; Shawn did not want them helping with his care. Austin saw the disappointment on Shawn’s face. Ms. Aube testified that she was unable to turn him. The family held a meeting at which they encouraged Ms. Aube to return Shawn to the hospital. She could not manage his care by herself, and Austin pointed out that they were not getting the assistance they were supposed to have. Kimberly Aube observed that Shawn needed adult diapers; Ms. Aube could not get Shawn out of bed or change his sheets. Ms. Aube was “hysterical,” but reluctantly agreed.

[37] So, later the same day, Austin called for an ambulance and Shawn was brought back to the hospital, accompanied by the plaintiff. His hospice suite was still available. Although ambulance attendants indicated in their reports that Shawn was in and out of consciousness when they dealt with him, Ms. Aube did not agree with that, and testified that Shawn would respond when spoken to.

[38] Ms. Aube attributes Shawn’s return to the hospital to the physical injuries she suffered in the fall. She believes that these injuries left her unable to care for Shawn. Nurse Marshall testified that Shawn was returned to the hospital for pain and comfort care. When she saw him on December 27, Ms. Marshall observed Shawn to be unresponsive, and not able to be roused or answer questions.

[39] Shawn passed away December 28, 2017, at 7:05 a.m. Ms. Aube was with him in their bed in the hospice suite and had to be bodily removed from his side. A memorial was held for Shawn on December 31.

[40] In cross-examination, Michelle Noble and Sheri Hore agreed that visits with sick or dying patients could be emotional for family members.

After Shawn’s passing

[41] Ms. Aube testified that she felt tremendous guilt because she did not fulfil Shawn’s wish to die at home. She let him down. After Shawn’s passing, she continued to have meetings with Ms. Goodwin for counselling and with Dr. Rodie for her medication, but she was not referred to other psychologists or psychiatrists.

[42] Ms. Aube described how difficult it was to lose Shawn, “the love of my life.” Shawn’s terminal diagnosis had changed the course of her life, and she was still grieving his loss. They had enjoyed doing things together and Ms. Aube found it hard to live without him and do things on her own. Watching Shawn decline for many years had been terribly difficult.

[43] Ms. Aube described the extreme guilt that she suffers from. “Shawn did not ask for much from me but he wanted to die at home.” According to the plaintiff, her feelings of guilt cause additional symptoms separate from her constant general baseline feeling of sadness. Her heart pounds, she suffers shortness of breath, feels nauseated, breaks out in a sweat, and cries. This happens at least once a day. To alleviate these symptoms, she sits down and tries to remain quiet.

[44] Ms. Aube has spoken with Ms. Goodwin and Dr. Rodie about her guilt, but she tries to be strong and not talk about it elsewhere. Kimberly Aube saw Tammy Aube “shrink away” after Shawn’s passing. Not letting Shawn die at home was eating away at Ms. Aube, and she broke down often about it. Kelsey Aube testified that at Shawn’s passing, Tammy Aube was “not well mentally.” She was very depressed and anxious that she had not been able to have him die at home. Ms. Aube expressed a desire “to be with” Shawn, but Kelsey told her that she had to “stay.” Austin Aube also testified to his mother’s continuing expressions of guilt.

Evidence of Dr. Jeeves, Dr. Sebastian, and experts

[45] Dr. Nicholas Jeeves was a rural generalist physician who practiced family medicine, among other things, prior to his retirement at the end of 2018. He knew Ms. Aube and Shawn, as both were nurses at the hospital where he also worked. He looked after both of their children. Ms. Aube was his patient from 1992 until December 2018 when he retired. On consent of the defence, Dr. Jeeves testified about all aspects of his care of Ms. Aube.

[46] Dr. Jeeves described Ms. Aube’s difficult mental health issues that began after Shawn’s terminal cancer diagnosis in 2012. She suffered from depression, anxiety, poor sleep, poor concentration, “anticipatory grief,” and she developed psychosocial issues. Dr. Jeeves referred her to a psychiatrist and to mental health services in the community. He assisted Ms. Aube in filling out forms for insurance (long term disability), for CPP, and for pension continuity.

[47] Anticipatory grief is grief for a person before they pass. In Ms. Aube’s case, the period of her suffering, five years, was exceptionally long. It was severe, like her depression and anxiety, and left her unable to do much beyond her focus on Shawn.

[48] Components of Ms. Aube’s depression included anxiety, worry, agoraphobia, feelings of conspicuousness, concentration and focus deficits, intrusive thoughts, poor mood, low energy, and poor sleep. In testing at CAMH for depression and anxiety, Ms. Aube scored 18 out of 21 and 21 out of 27 on two diagnostic tools in 2015, already near the top end of such scales. In 2017 at Dr. Jeeves’ clinic, Ms. Aube scored 21 out of 21 and 27 out of 27 on the same tools. The plaintiff’s scores showed “severe” results, that only continued to increase in severity.

[49] Shawn’s cancer was the dominant feature of the plaintiff’s life, and she spoke with Dr. Jeeves about it. The plaintiff, a registered nurse, served as Shawn’s primary caregiver, and she dealt with such issues as Shawn’s balance problems, ulcers in Shawn’s buttocks, and the tube to drain Shawn’s kidney. She was qualified to assess and manage the majority of Shawn’s physical needs, although such care was not generally provided by family members.

[50] Dr. Jeeves’ extensive records contained no reference made by Ms. Aube to him about the trip and fall, injuries from the trip and fall, pain medication in December 2017, or of Ms. Aube being unable to continue caring for Shawn in December 2017. He had known nothing of these things.

[51] According to Dr. Jeeves, after Shawn’s death, Ms. Aube was no longer preoccupied with Shawn’s day-to-day care. Her life had changed. Her children were no longer at home, and she did not have regular visits with her grandchildren. She was completely on her own, without her soulmate. She suffered from an adjustment disorder: she had to bear the full weight of the anticipated grief that could no longer be displaced through Shawn’s care and keeping him company. Ms. Aube’s anxiety became worse when she did activities that she used to do with Shawn. She lost her sense of purpose, and there was an increased risk of suicide. Her counselling with Ms. Goodwin and referral to Dr. Rodie continued.

[52] Dr. Shruti Sebastian took over from Dr. Jeeves on his retirement and took on Ms. Aube as a patient. She remembered Ms. Aube as having a complex medical history involving cancer, anemia and depression. Her depression included symptoms of poor sleep, lack of interest, feelings of guilt, eating and mood problems, and suicidal issues. Ms. Aube continued to score high on diagnostic assessment tools for depression.

[53] Dr. Sebastian had no notes in which Ms. Aube spoke of the trip and fall or injuries from it. She did record information about a 2019 car accident, complications from breast surgery, and the passing of the plaintiff’s mother.

[54] 2019 was a difficult year for Ms. Aube. In October 2019, Ms. Aube was involved in a motor vehicle accident at a gas station when someone backed into her. Her son and daughter-in-law had issues that caused Ms. Aube stress. Ms. Aube underwent revision breast reconstruction in December 2019 because of complications with her implants. She was admitted to intensive care a few times for treatment of further complications. The plaintiff’s mother died in 2019.

[55] The evidence of Dr. Karen Gordon and Dr. Jeremy Frank in the area of clinical psychology, and the evidence of Dr. Brian Kirsh in the area of forensic psychiatry was received on consent. Statements of qualifications of all of these opinion witnesses were filed, and I was satisfied that they are qualified by education, training and experience to offer opinion evidence in their respective areas, and that they understand their duty to the court.

[56] Dr. Gordon and Dr. Frank were called by the plaintiff. They conducted an assessment of Ms. Aube in around September 2021. Dr. Gordon conducted an interview with Ms. Aube on September 23, 2021, and tested her with proven psychological assessment tools, which gauged Ms. Aube’s issues at that point in time. The psychologists reviewed Ms. Aube’s clinical notes, and observed no mention of the trip and fall.

[57] Ms. Aube described to the psychologists her physical and mental health issues that preceded the trip and fall in December 2017, including a major depressive disorder. She described the events of December 6, 2017 (though mistaking the date as December 11), her injuries, and the effects of the injuries on her ability to care for her spouse. She explained that she suffered from guilt as a result of being unable to care for Shawn at home, and her anxiety increased when she had to send Shawn back to the hospital. Her symptoms of depression, anxiety, sleep problems, concentration and inability to cope, became worse after Shawn’s death.

[58] Dr. Gordon agreed that Ms. Aube saw Shawn’s death as a traumatic event. Ms. Aube was lying with Shawn in his hospice bed when Shawn passed, and did not leave him until funeral staff came in and her sons removed her from the bed. This conclusion added additional trauma to Ms. Aube over and above no longer having Shawn in her life.

[59] Dr. Gordon also administered three questionnaires to the plaintiff, whose results were examined and interpreted by the two psychologists and explained in evidence by Dr. Frank. Self-checking aspects of the exams signalled that Ms. Aube was forthright and believed what she had told the psychologists.

[60] Among the tests that were administered was the Personality Assessment Inventory, the “gold standard” in its domain. An analysis of the plaintiff’s answers to its 344 questions revealed that Ms. Aube had minor physical symptoms, but a tendency to ruminate about health concerns. She had clinically significant anxiety which included cognition issues, physical symptoms such as pounding heart and shortness of breath when she thought about Shawn’s death, and tension and the inability to relax. She focused excessively about certain things, feeding into the guilt that she felt.

[61] There was evidence of a past traumatic event that caused ongoing symptoms of post traumatic stress disorder (“PTSD”), including nightmares and flashbacks, and becoming panicky and distressed when reminded of the event. “Avoidance dynamics” would cause her not to talk much about the traumatic event.

[62] Ms. Aube also was suffering from clinically significant depression, based on high scores for symptoms of cognitive depression such as guilt, and physical depressive symptoms such as low sex drive and sleep problems, and for symptoms of affective depression such as sadness and feelings of hopelessness.

[63] The results of another test, the Minnesota Multiphasic Personality Inventory 3, another “gold standard” instrument, showed that Ms. Aube suffered from high emotional distress (“in crisis”), depressive symptoms such as suicidal ideation, the inability to experience joy or pleasure, anxiety, cognitive problems, and difficulty in social situations.

[64] The results of a last test, the Post Traumatic Stress Checklist (PCL5) scored Ms. Aube at “65”, where a score of 38 was indicative of PTSD. Dr. Frank not unreasonably opined that this result was “highly suggestive” of PTSD. Ms. Aube reported suffering from repeated disturbing dreams of her distressing experience. She relived that experience and became extremely upset when she was reminded of it, suffered physical symptoms, blamed herself to an extreme degree, and suffered extreme feelings of guilt.

[65] In sum, the psychologists diagnosed Ms. Aube with PTSD based on feelings of guilt. Guilt “was like a ghost for her,” and was not simply grief. Ms. Aube had a pre-existing propensity from her depression. She took meaning from being with Shawn at the end, but she could not provide what he wanted, which was the source of trauma, manifesting as guilt, anger, and shame. Repression of her symptoms caused panic, and the mental energy that she put into avoidance of the trauma caused memory issues, and cognition and emotional problems.

[66] Ms. Aube also suffered from a generalized anxiety disorder, causing uncontrollable worry and inability to relax, and a moderate major depressive disorder with passive suicidal ideation (“it would be better to be dead”).

[67] Dr. Frank described the plaintiff’s prognosis as “guarded”. The clinical picture had become entrenched, and it was more likely than not that Ms. Aube would continue to suffer similar levels of impairment. He recommended two years of weekly therapy as a means of addressing these issues and costed out such a course of treatment. At trial, Ms. Aube was not asked whether she would engage in such therapy.

[68] Dr. Kirsh, who was called by the defendant, is a psychiatrist who has done medico-legal work and has practiced in the area of pain management. He is close to retirement. He met with Ms. Aube March 22, 2022, and did not find her forthcoming about her personal history. Like Dr. Gordon and Dr. Frank, Dr. Kirsh reviewed substantial background material about the plaintiff. In evidence Dr. Kirsh provided a summary of the plaintiff’s mental health background before finishing by stating that Ms. Aube has felt guilt ever since Shawn’s death because she admitted him back to hospital when he wanted to die at home. She was still suffering from depression and anxiety when Dr. Kirsh met with her.

[69] Based on his meeting with her and her high scores on less fulsome inventory screening instruments than those used by the psychologists, Dr. Kirsh opined that there was “good evidence” for diagnoses of depression and anxiety. But Ms. Aube had been suffering from significant depression and anxiety for five years already before the trip and fall.

[70] Dr. Kirsh attributed Ms. Aube’s depression and anxiety primarily to Shawn’s illness and death. Dr. Kirsh noted that Ms. Aube felt guilt about Shawn not dying at home, but also pointed out that she had expressed guilt at “not making more of her life.” To Dr. Kirsh, guilt was simply a symptom of the plaintiff’s prolonged depression. Unlike Dr. Frank, Dr. Kirsh did not see the plaintiff’s feelings of guilt as being a significant factor in her mental health problems. Rather, “grief and depression distort guilt.”

[71] Dr. Kirsh rather explains Ms. Aube’s PTSD diagnosis as attributable to the emotional trauma that Ms. Aube experienced by being with Shawn when he died and from seeing him die. Dr. Kirsh instead offered the diagnosis of “persistent complex bereavement disorder” (“PCBD”) to explain Ms. Aube’s mental health struggles. In the circumstances of this case, her grief began five years before Shawn’s death. Dr. Jeeves’ term “anticipatory grief” is not a DSM-5 diagnosis, but it aligns with Dr. Kirsh’s diagnosis.

[72] PCBD involves grief that persists longer than 12 months, persistent yearning for the one who is lost, preoccupation with the circumstances of death, difficulty with reminiscing about the deceased, disbelief, anger, identity issues, a desire to die, and a sense that life is meaningless. Dr. Kirsh noted that Ms. Aube was “quite emotionally dependent” on Shawn, and that her giving up work in 2012 to care for Shawn was an unusual reaction for someone in her position and led to her social isolation. This was on top of her depression symptoms which had begun as early as 2012 and perhaps as early as 2010.

[73] In cross-examination, Dr. Kirsh agreed that Ms. Aube had likely suffered contusions and soft tissue injuries in the fall at the hospital. She would have been more vulnerable at the time of her husband’s passing. Dr. Kirsh could not disagree that Ms. Aube could have been compromised because of her physical pain, and that the accident could have added to her pre-fall mental health issues. He could not say if any injuries Ms. Aube suffered in the trip and fall prevented her from caring for Shawn.

[74] Dr. Kirsh acknowledged that at the time he met with the plaintiff, PCBD had only recently been added to the DSM-5-TR, although he added that it was not completely new, and that it used to be called “prolonged grief or complex grief,” involving avoidance and difficulty dealing with the circumstances of death.

Assessment of evidence

Credibility

[75] I have no reason to doubt the credibility of the evidence given by any witness in this case. The issue in the case really depends in large measure on the plaintiff’s construction of events, and the issue with her as a witness is not credibility, but rather reliability.

[76] Credibility is not the only issue to assess with respect to witness testimony. The reliability of a witness’ evidence is a separate, but related issue. As noted by Watt, J.A., in R. v. C.(H.), 2009 ONCA 56, [2009] O.J. No. 214 (C.A.), at para. 41, credibility focuses on a witness’s veracity, while reliability has to do with the witness’s accuracy. Accuracy involves the ability to observe, recall and recount events that are in issue. So, Justice Watt states “Any witness whose evidence on an issue is not credible cannot give reliable evidence on the same point. Credibility, on the other hand, is not a proxy for reliability: a credible witness may give unreliable evidence.”

[77] I find that Ms. Aube’s view of events from December 2017 has been distorted by the death of Shawn and by her almost unimaginable devotion and attention to him in that final month of his life, the culmination of five years of intense suffering for them both. Exhaustion, sorrow and suffering become a difficult medium through which to see and interpret events accurately.

Adverse inference

[78] The defendant argues that I should draw an inference adverse to Ms. Aube because her long-time counsellor, Gerlinde Goodwin, was not called to testify. The defendant submits that Ms. Goodwin would be best situated to have knowledge of any injury suffered by Ms. Aube in the trip and fall, and any lingering effects that it had upon her. As the defendant sees it, Ms. Aube must have a reason not to want Ms. Goodwin to reveal to the court what she knows about Ms. Aube’s claims.

[79] In my view, on all of the circumstances of this case, there was ample other evidence before me to assess whether, and to what degree, Ms. Aube was affected by the trip and fall at the hospital so that she became unable to care for Shawn in their home. It was unnecessary to call Ms. Goodwin, whose counsellor/client interactions with Ms. Aube are owed a measure of privacy. No adverse inference is warranted: Parris v. Laidley, 2012 ONCA 755.

Legal issues and analysis

[80] For a plaintiff to succeed in a negligence action, the plaintiff must demonstrate: that the defendant owed her a duty of care; that the defendant’s conduct breached the standard of care; that the plaintiff suffered damage; and that the damage was caused, in fact and in law, by the defendant’s breach: Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, at para. 3.

[81] In the circumstances of this case, the defendant admits that a duty of care was owed to the plaintiff and that its conduct breached that standard of care. The broken tile and the covering laid over top of it in the entrance of the Health Centre created a hazard for persons entering the premises that caused the plaintiff to trip and fall.

[82] However, the defendant takes issue with the other elements of negligence.

Psychological injury

[83] On the facts in this case, Ms. Aube claims to be suffering from a psychological injury that she relates back to the physical injuries that she suffered in the fall at the Health Centre on December 6, 2017. On the evidence of Drs. Gordon and Frank the injury that she suffered in addition to depression and anxiety was PTSD resulting from her feelings of guilt over her inability to allow Shawn to die at home. According to Dr. Kirsh, the plaintiff’s mental illness is rather to be described as PCBD. On that diagnosis Ms. Aube’s focus on Shawn’s death, the culmination of five years of grief over his loss, necessarily evoked and also distorted feelings of guilt, a by-product of her depression, that arose because of her inability to grant Shawn’s wish to die at home.

[84] The law is clear that even undiagnosable psychological injury can ground damages in a negligence claim: Saadati v. Moorhead, 2017 SCC 28, at paras. 2, 36. What is required, however, is that the psychological injury or illness, however described, was caused by the defendant’s negligence. Moreover, the mental injury must be “serious and prolonged and rise[] above the ordinary annoyances, anxieties and fears that come with living in civil society:” Bothwell v. London Health Sciences Centre, 2023 ONCA 323, at para. 23. This issue can be determined based on the level of impairment experienced by a plaintiff, including effects on the plaintiff’s cognitive functions, the duration of such impairments, and treatments undertaken for such psychological upset: Bothwell, at paras. 32-33.

[85] I find that the Ms. Aube’s psychological injury/illness clearly has been serious, prolonged, and no mere annoyance or simple anxiety. While it may be possible to dismiss a feeling of guilt as an ordinary anxiety that everyone experiences at one time or another, the plaintiff’s feeling of guilt has morphed into PTSD on the diagnosis offered by Drs. Gordon and Frank, or has become an aberrant focus for Ms. Aube on Dr. Kirsh’s diagnosis of PCBD. In either circumstance, it cannot be minimized as simply an ordinary anxiety that comes with living in civil society.

[86] I accept that Ms. Aube is experiencing prolonged and significant effects from a psychological malady. The issues for this court’s determination are whether these effects were caused by the trip and fall and, if so, whether they are compensable as an injury in law.

Causation of damages in negligence

[87] The defendant denies liability for the plaintiff’s damages on the bases of factual and legal causation.

[88] In the circumstances of this case, in which there is only a single alleged tortfeasor in negligence, causation is generally established when a plaintiff can show that she would not have sustained injury “but for” the negligent act of the defendant. An alternative formulation looks to whether the negligence of the defendant materially contributed to the risk of injury suffered by the plaintiff: Clements v. Clements, 2012 SCC 32, at paras. 8-16.

[89] For a negligence claim to succeed, a plaintiff must prove that the defendant’s negligence caused the plaintiff’s injury “in fact and in law”: Mustapha, at para. 11. The factual aspect of the claim looks to whether the evidence before the trier of fact suffices to show that in fact the breach caused the plaintiff’s injury. In the sexist terminology of a bygone era, the test for legal causation involves whether the harm caused to the plaintiff was foreseeable by a “reasonable man”: Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. (“Wagon Mound (No. 1)”), [1961] A.C. 388 (P.C.), at p. 424; Mustapha, at para. 12.

Factual causation

[90] Factual causation requires Ms. Aube to prove on the balance of probabilities that “but for” the negligence of the defendant, the injury to Ms. Aube would not have occurred. The test is satisfied so long as the defendant’s negligence was a contributing cause of the plaintiff’s psychological injury (even among many others) and is not to be applied too rigidly. Rather, it is “essentially a practical question of fact which can best be answered by ordinary common sense”: Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, at paras. 13-20.

[91] In the circumstances of this case, I am unable to find on the balance of probabilities that the trip and fall at the hospital on December 6, 2017 probably caused or contributed to Ms. Aube’s psychological injury.

[92] To begin, I am not persuaded that Ms. Aube suffered any significant physical injuries in the trip and fall. Ms. Aube explained that her focus at the time that she fell and after was on caring for Shawn, rather than on reporting her injuries from the trip and fall or on seeking assistance with her injuries or the pain that she suffered from them. Accordingly, Ms. Aube never reported the physical injuries or sought any assistance or pain relief for them from persons who were in a position to help her with them. This was not reasonable, if the pain that she was feeling was at all substantial. It also calls into question the reliability of the plaintiff’s recollection of those injuries or of the severity of any such injuries.

[93] I accept the evidence of Michelle Noble, that Ms. Aube told her that she was only reporting the trip and fall to protect others from the hazard presented by the broken floor tiles, and that Ms. Aube never offered any detail about any injuries that she had suffered in the trip and fall the day before. But Ms. Aube was a nurse at this hospital and took the time to act in the public interest when her desire was to be able to continue to help Shawn. Why did she not take a few extra minutes to offer detail about her injuries to Ms. Noble or to consult with a physician about pain from her fall? Why did she make no mention to Dr. Jeeves, her own physician, about the fall? By the time that Ms. Aube spoke of her pain to family members, she had already taken on the substantial physical burden of caring for Shawn at home during the last days of his life. I cannot say at that point that the physical pain Ms. Aube suffered came from the trip and fall.

[94] Ms. Aube testified that her physical pain was better three weeks after the trip and fall, which would be around December 27, the date that Shawn had to go back into the hospital. Why did her pain resolve around that date? My assessment of the evidence in this case tells me that the reason for the improvement was that it was on December 27 that Ms. Aube stopped having to suffer excessive strain to move Shawn by herself. I find it more likely that Ms. Aube’s physical pain was caused by her unreasonable demands on herself in caring for Shawn.

[95] Even after the trip and fall, Ms. Aube was able to assist in caring for Shawn in hospice and at home until December 27. In hospice, Ms. Aube had the assistance of other staff in moving Shawn and re-situating him on the bed, and there is no evidence that pain limited her assistance to Shawn at that time. But in hospice Shawn, though failing, was still mobile and therefore also able to assist in moving himself. Clearly, by December 27 in his home, that was no longer the case. Shawn was in and out of consciousness and delirious, and in the experience of Ms. Marshall, water retention would have made Shawn, a large man, even more difficult to move.

[96] Moreover, Ms. Aube insisted on doing most everything alone for Shawn at home from December 22 on, which was an unreasonable and relentless strain on herself. The children, one of whom was a paramedic, were not allowed to help, at Shawn’s insistence. The evidence of Ms. Marshall was that a sensible hospital policy insisted on two staff being required to move a patient, to avoid injury to patient or staff. While Ms. Aube had access to some assistive devices at home, she did not have sufficient assistance from other persons or an adjustable hospital bed, and Shawn was a big man.

[97] Ms. Mailloux testified about the lengths that she went to in order to ensure that nursing staff and PSWs were available to assist Shawn in the home, both prior to the fall and during the Christmas pass. But there was a waiting list for staff on Manitoulin Island. Austin Aube noted with some asperity that homecare was not sending enough help and were short-staffed. The defendant had insufficient control over satisfying Shawn’s homecare needs.

[98] Nor am I persuaded that any physical injuries suffered by Ms. Aube in the trip and fall were a cause of psychological injury after Shawn’s death. Ms. Aube already had a pre-existing history of significant depression and anxiety and feelings of guilt. The experts agreed that guilt is among other things a symptom of depression. Ms. Aube felt guilt for wishing ill on the doctor who she believed had missed evidence that Shawn’s cancer had returned. She felt guilty for not making more of her life. Was the plaintiff’s guilt about Shawn’s dying wish a signal of a mental injury relating to the trip and fall, or simply a symptom of her pre-existing depression?

[99] The expert witnesses on both sides of the case offer attractive diagnoses for the psychological illness that Ms. Aube complains of. Is it PTSD caused by an independent sense of guilt experienced by Ms. Aube for not permitting Shawn to die in his own home, as Drs. Gordon and Frank diagnose, or is it PCBD, as Dr. Kirsh diagnoses, wherein the plaintiff’s guilt for not fulfilling her husband’s wish is a grossly distorted symptom of depression? I am unable to find that Ms. Aube’s sense of guilt arose, as she plainly believes, from her inability to care for Shawn at home rather than as a by-product of her long-term depression. In this respect, though I find Ms. Aube to be credible, I do not find her belief to be reliable, or that the psychological evidence, based as it is on the credibility of Ms. Aube’s belief system, is determinative.

[100] I acknowledge that Drs. Gordon and Frank performed “gold standard” tests on Ms. Aube and spent more time speaking with her than did Dr. Kirsh, and that Ms. Aube suffers physical symptoms when she thinks about her failure to assist her husband at the end of his life. In my view, the fact that PCBD causes a sufferer to dwell on the lost beloved’s death can also sufficiently account for the plaintiff’s morbid reflection on her supposed failure. I see no reason to discount Dr. Kirsh’s diagnosis only because PCBD had only recently been added to the DSM-5 when Dr. Kirsh met with the plaintiff. In the circumstances of this case, I cannot say that the plaintiff’s experience of Shawn’s death would not have caused the plaintiff’s suffering based purely on her pre-existing psychological illnesses: Chaudhry v. Henville, 2021 BCSC 2318, at paras. 177-178.

[101] Moreover, the competing diagnoses of the psychologists and Dr. Kirsh either highlight guilt as an independent cause of the plaintiff’s psychological injury or show it up as merely a symptom of her continuing mental illnesses. I am unable to find that the explanation advanced by Ms. Aube and Drs. Gordon and Frank is the more probable one. Certainly, the significant trauma experienced by Ms. Aube from the decline and death of her husband, and the death of close relatives and her own health difficulties in the period following Shawn’s death lend weight to the explanation given by Dr. Kirsh, that grief and depression distort guilt.

[102] In looking at all the factors that must play into the analysis, I cannot find that the trip and fall Ms. Aube suffered December 6, 2017, at the Manitoulin Health Centre probably caused or contributed to the injuries and pain that Ms. Aube says kept her from caring for Shawn until December 28. It seems more probable that the physical pain she suffered was from taking on too much personal and individual responsibility at home for Shawn’s care, with too little PSW and nursing assistance because of staffing levels on Manitoulin Island and the season. PCBD deriving from Ms. Aube’s pre-existing mental illnesses appears to be at least as likely a diagnosis as PTSD developing as a further psychological injury from the trip and fall.

[103] Accordingly, the plaintiff has not established factual causation in the circumstances of this case. Although that analysis suffices for the determination of this matter, it is useful for completeness to consider the issue of legal causation.

Legal causation

[104] Even if I were persuaded that Ms. Aube suffered from a psychological injury as described by Drs. Gordon and Frank, stemming from physical injuries that Ms. Aube received in the trip and fall, that is not the only hurdle to surmount to establish that the trip and fall caused that injury. I must also be able to find that such an injury would be reasonably foreseeable to the defendant.

[105] Possibility of causation alone does not suffice to defeat a finding of “remoteness” in the inquiry into legal foreseeability. For legal causation, the injury must be reasonably foreseeable: see, e.g., Facchini v. The Attorney General of Canada, 2019 ONSC 3902, at paras. 80-84. For an eventuality not to be “too remote” a consequence of the negligence, it must be a “real risk”, one that would occur to a reasonable person in the position of the defendant, one that would not be brushed aside as “far-fetched”. The context involves “what a person of ordinary fortitude would suffer.” The law does not impose liability for the exceptional frailty of certain individuals. While it may be possible to imagine unusual or extreme reactions to events caused by negligence, such reactions are not “reasonably foreseeable.” This threshold is set not to punish those who are particularly vulnerable, but rather to ensure that a defendant is held to account only for harm based on reasonable foresight, so that he or she is not cast as a de facto insurer, liable for any consequence that arrives: Mustapha, at paras. 13-16.

[106] Where a straightforward route can be established between physical injury and mental injury, the remoteness restriction can be relaxed: Hussack v. Chilliwack School District No. 33, 2011 BCCA 258, at paras. 73-75. However, a type of injury can be so unusual or unexpected, or the path leading to it so circuitous or bizarre, that it would be unfair to impose liability on a defendant even when it is established that the injury was in fact caused by the carelessness of the defendant: Tellini v. Bell Alliance, [2022] B.C.J. No. 491 (C.A.), at para. 49, citing Fridman’s The Law of Torts in Canada (4th ed., 2020).

[107] In the circumstances of this case, I cannot find that the psychological injury suffered by Ms. Aube would have been reasonably foreseeable to the defendant. This is so even if I had found that the Ms. Aube’s trip and fall was probably a contributing cause of Ms. Aube’s inability to allow Shawn to pass away at home, which probably caused Ms. Aube’s feeling of guilt, which probably resulted in PTSD that was independent of Ms. Aube’s pre-existing long-term anxiety and depression.

[108] Such a chain of causation is an extreme and unusual reaction. While it is possible to be aware that a fall would cause pain to a caregiver spouse, and that the pain would cause her inability to care for a dying husband, and that he would therefore have to be returned to the hospital instead of dying at home, and that his caregiver would therefore experience severe feelings of guilt that would cause PTSD, it cannot be said to be reasonably foreseeable.

[109] Ms. Aube points out that in Mustapha, at para. 17, McLachlin C.J. added that proof that the defendant had “actual knowledge of the plaintiff’s particular sensibilities” would allow the remoteness inquiry to “not be applied strictly.” Ms. Aube argues that nurses Noble and Hore acknowledged that visitors to the hospital who were seeing injured or dying patients were often emotionally vulnerable, and that this should constitute actual knowledge by the defendant of Ms. Aube’s sensibilities.

[110] I cannot agree. The general acknowledgement by these witnesses of emotional weakness in a general category of hospital visitor can in no way serve as a surrogate for actual knowledge of Ms. Aube’s own personal circumstances, or of the psychological injury that Ms. Aube’s extreme feelings of guilt might cause her. That is, the generality acknowledged by these witnesses was not “actual knowledge” of Ms. Aube’s peculiar sensibilities. The remoteness inquiry remains appropriate, and such a psychological injury suffered by Ms. Aube would be simply too remote in law from the defendant’s negligence to ground liability in the defendant.

Conclusion

[111] Accordingly, for the above reasons, I must find the defendant not liable for the psychological illness sustained by Ms. Aube after her trip and fall at the Manitoulin Health Centre on December 6, 2017. The claim is dismissed.

[112] If the parties are unable to agree on costs, they may file written submissions of no more than three double-spaced pages with the court within 30 days.

The Honourable Justice A.D. Kurke

Released: January 3, 2024