The recent Ontario Court of Appeal decision in Bothwell v. London Health Sciences Centre revisited what is necessary for a plaintiff to prove in order to be successful in a mental injury action. Specifically, the Court addressed whether feelings of anger, sadness and frustration, without more, result in a compensable mental injury.
Bothwell arises from an incident where Mr. Bothwell was administered with the wrong medication when attending a hospital. When Mr. Bothwell discovered the error, he was angry and frustrated, and he brought a claim for mental injury. Mr. Bothwell, attended at London Victoria Hospital for a surgery related to his Crohn’s disease. While recovering, his blood pressure decrease, and the doctor ordered Voluven (blood volumizer) to treat the issue. A nurse administered Heparin by mistake which is an anti-coagulant.
When Mr. Bothwell woke up after the initial surgery, he heard a hospital staff member ask if the Voluven had been given and then he heard words along the lines of “that’s f***ing Heparin”. Mr. Bothwell is a paramedic and was aware that Heparin could cause significant bleeding. He blacked out and woke up at some point later. The Heparin administration led to internal bleeding, further surgeries, and various other treatment.
In the Statement of Claim, the plaintiffs alleged that Mr. Bothwell had experienced an exacerbation of his symptoms of Crohn’s disease, injuries to internal organs, digestive issues, neurologic injury, weakness, muscle wasting, sensory loss, nightmares, emotional distress, anxiety, depression, and psychological injury because of the improperly administered medication. His wife also advanced a Family Law Act action for loss of care companionship and guidance.
At trial, the judge ruled that the nurse and the hospital breached their duty of care by administering the wrong medication to Mr. Bothwell. The trial judge decided that the causation requirement between the breach of duty and Mr. Bothwell’s psychological upset met the test in Saadati v. Moorhead 2017 SCC 28. Mr. Bothwell’s upset was “serious and prolonged and rise[s] above the ordinary annoyances, anxieties and fears”. Interestingly, the plaintiff failed to produce any expert psychological evidence.
Saadati is regarded as the leading case on proving mental injury. In Saadati, the Court specifically stated that mental injury should be treated in the same regard as any physical injury.
The Supreme Court stated that a plaintiff does not need to show that their mental injury is a recognized psychiatric illness:
 […] Claimants must, therefore, show much more – that 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. […] Ultimately, the claimant’s task in establishing a mental injury is to show the requisite degree of disturbance. […]
 […] In assessing whether the claimant has succeeded, it will often be important to consider, for example, how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment and the nature and effect of any treatment [the Saadati factors]. To the extent that claimants do not adduce relevant expert evidence to assist triers of fact in applying these and other relevant considerations, they run a risk of being found to have fallen short. […]
Saadati also confirmed that it is not required for a plaintiff to provide an expert opinion to establish a formal medical diagnosis and lay witness evidence can be sufficient to prove damages.
While Mr. Bothwell alleged that he suffered nightmares, emotional distress, anxiety, and depression following the medication error. However, the only evidence given in relation to his psychological injury was from the plaintiff himself.
Despite the lack of independent evidence of psychological impairment, the trial judge accepted Mr. Bothwell’s evidence that he was frustrated and angry about the medication error and the feelings continued until the trial in 2020. The judge considered Mr. Bothwell to be reliable and sincere and he did not exaggerate his issues. There was no evidence led that Mr. Bothwell received any treatment for his emotional issues and he admitted that it had not interfered with his ability to work and be involved with his family.
Court of Appeal Decision
The matter was appealed, and the defendants argued that the trial judge made an error in law by determining that Mr. Bothwell’s anger and upset was enough to prove mental injury at law.
The Court of Appeal agreed that the medication error was a breach of the standard of care owed to Mr. Bothwell and that it was a traumatic situation for him and his wife. The Court of Appeal did note that despite this, feelings of anger and frustration, without more, is evidence of psychological upset, not injury.
The Court of Appeal reviewed the legal test in Saadati. It was decided that Mr. Bothwell’s feelings of anger and frustration was evidence of psychological upset, and not mental injury. The Court of Appeal held that as there as no evidence of impairment of cognitive functioning, obstruction with activities of daily living, or treatment for emotional symptoms. As such Mr. Bothwell’s claim for mental injury could not be successful.
The Court of Appeal clarified that the Court must consider all the Saadati factors in assessing a mental injury claim:
 In my view, paras. 37 and 38 [of Saadati] together are a clear direction that, in distinguishing mental injury from psychological upset, the trier of fact must consider not only the claimant’s psychological upset but also how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment, and the nature and effect of any treatment sought and taken in relation to the psychological upset.
The Court of Appeal found no evidence of impairment to Mr. Bothwell as he continued to work after the incident, had a good relationship with his family, and sought no psychological treatment. The Court of Appeal stated that Mr. Bothwell’s case differed from Saadati, as Mr. Saadati suffered personality changes and mood swings which changed his relationships with family and friends.
The Court of Appeal reviewed the Supreme Court of Canada’s reasoning in Saadati. The Court reiterated that to prove mental injury it does not have to be demonstrated that a plaintiff’s condition meets the threshold of a recognizable psychiatric illness.
The Court of Appeal elaborated that the trier of fact must consider the plaintiff’s mental upset, the seriousness of the impairment and the amount of treatment received. It was determined that feelings of anger and frustration, without more, are evidence of psychological upset only, and not of an injury. The Court stated, “In the absence of evidence of impairment of cognitive functioning, interference with activities of daily living, or treatment for emotional symptoms, the claim for mental injury cannot succeed.”
Mental injuries, unlike physical ones, cannot be objectified, and are therefore more challenging to prove.Bothwell clarifies that a plaintiff still must prove that they have suffered feelings of anger, frustration, and sadness. In a mental injury claim, a plaintiff still must prove the defendant has acted negligently and breached a duty of care. Specifically, in a mental health claim, the plaintiff must prove that their injury goes beyond annoyances, anxieties, and fears.
In Saadati, it was confirmed that triers of fact should not be focused with a plaintiff’s diagnosis, but on a plaintiff’s symptoms and how they affect the plaintiff’s daily life. Saadati set out the following criteria that should be considered when assessing whether damages can be awarded for a mental injury:
- How seriously the claimant’s cognitive functions and participation in daily activities were impaired;
- The length of such impairment; and
- The nature and effect of any treatment sought.
Further, the Saadati decision made it clear that mental injuries are to be treated like physical injuries and expert evidence is not necessary to obtain damages.
The decision in Saadati was mostly based on the evidence of lay witnesses. In a mental injury claim, it is likely that a plaintiff will rely heavily on this type of evidence. During the discovery process, emphasis should be put on obtaining all lay witnesses contact information and ascertain what their evidence would be at trial. It might be surprising what information a lay witnesses may provide which could refute the plaintiff’s allegations.
Regarding expert evidence, this is not required in mental injury claims. Expert evidence would still be of assistance to both defendants and plaintiffs as the Courts have confirmed that expert evidence will be helpful in proving whether a mental injury exists. This evidence could be useful in assessing the severity of a plaintiff’s symptoms, the impairment length and how treatment has affected the plaintiff’s recovery.
Bothwell v. London Health Sciences Centre, 2023 ONCA 323 (CanLII).