Date: 19971205
Docket: T-2082-95
BETWEEN:
CHRISTOPHER WILSON
Plaintiff
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
REASONS FOR JUDGMENT
LUTFY J.:
[1] In February 1994, the plaintiff's mother died. At the time, he was incarcerated at the Collins Bay Institution. Approximately one month later, the plaintiff's father wrote to his son to advise him of his mother's death. On the advice of officials of the London, Ontario office of the Correctional Service of Canada, the plaintiff's father arranged for the delivery of the letter in accordance with the instructions he had received from the Service. The plaintiff never received the letter.
[2] In July 1994, unaware of his mother's death, the plaintiff wrote to his parents. He had not been in communication with them since late 1993. In August 1994, the plaintiff's father responded to this letter and again advised him of the death of his mother.
[3] The Correctional Investigator, subsequent to his review of the plaintiff's complaint, acknowledged that the Service did receive his farther's original letter of March 1994. The failure to deliver this letter to the plaintiff is not explained. The defendant does not contest that the plaintiff did not receive his father's letter of March 1994.
[4] The plaintiff has instituted this action for damages as the result of the Service's failure to deliver his father's letter of March 1994. The plaintiff alleges that he has suffered "substantial anguish, pain and suffering" and "was plunged into a depression and desperation in that he was not advised of his Mother's death in a timely fashion."
[5] The defendant seeks the dismissal of this action by way of summary judgment on the grounds that: (a) the defendant owed no duty of care to the plaintiff with respect to the delivery of the original letter; (b) the plaintiff has not suffered the requisite "recognizable psychiatric illness" or "lasting disorder of the mind or body" required for an action for negligent infliction of nervous chock; (c) the "psychiatric damage" alleged by the plaintiff was not a foreseeable consequence of the defendant's negligent conduct; and (d) there is no causation between the alleged negligent act of the defendant and the plaintiff's damages.
[6] For the purposes of this motion, I have assumed that the defendant owed a duty of care to the plaintiff, that the disorder the plaintiff complains of is actionable and that the damages were foreseeable. However, in my view, the plaintiff's action must fail because of his failure to establish any causal relationship between the damages he alleges and his not receiving information of his mother's death in March 1994.
[7] In responding to the defendant's motion for summary judgment, it is incumbent upon the plaintiff to "put his best foot forward", a principle adopted by the Court of Appeal in Feoso Oil Ltd. v. Sarla (The), [1995] 3 F.C. 68 at 82.
[8] The closest the plaintiff comes to establishing a causal connection between the damages he alleges and the defendant's failure to deliver to him the letter of March 1994 is in the following paragraph from his affidavit:
| As a result of the Service's failure to advise me of my mother's death, I was deprived of sharing appropriately in the grieving process with my father and other family members. I have suffered through an unusual range of emotions, including guilt, frustration, low self-esteem and hopelessness, and continue to experience long periods of depression. |
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[9] A careful reading of even this extract of the affidavit does not necessarily establish the nexus between the plaintiff being "... deprived of sharing appropriately in the grieving process with my father and other family members" and the other symptoms alleged. The news of his mother's death was communicated to him sometime after her burial. The Correctional Investigator suggested that the plaintiff submit an application for a humanitarian temporary absence to visit her grave side. There is no evidence that the plaintiff has pursued this suggestion.
[10] The plaintiff has produced the clinical notes of a correctional institution psychologist and the reports of two other psychologists who conducted their assessments at the request of the Service. In addition, the defendant has produced a pre-parole psychiatric assessment. These medical reports are consistent in establishing that the plaintiff was raised in a difficult family environment and was first involved in criminal activity some fifteen years ago as a young teenager. Among these various medical documents, there is only one passing reference to the failure to deliver the March 1994 letter:
| Mr. Wilson intimated his most recent bout of depression was primarily attributed to the inept and callous manner C.S.C. communicated the news of his mother's death. Apparently there was a significant time lapse about this correspondence, (Mr. Wilson estimates it to be 6 months). Subsequently Mr. Wilson was denied the opportunity to appropriately grieve his mother's loss. In the interim, he has been involved in several grievances regarding this matter. Unfortunately, he has received little satisfaction through his efforts. Conversely, he has become more embittered, frustrated and depressed with C.S.C. lack of progress in resolving his case. |
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Neither the report from which this extract is taken nor any of the other medical reports establish any causal relationship between the fault alleged by the plaintiff against the defendant and his mood symptoms. The psychiatrist's report states:
| There was no evidence that he suffered from any major mental illness. His history of depressive symptomatology appeared atypical in terms of fulfilling criteria for major depression. The period of depression described were (sic) brief with withdrawal and some hypersomnia. The moods described appeared, however, to be an odd mixture of hostility, dissatisfaction, frustration, as well as some degree of dysphoria or depression." |
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These comments are not related to the delay in receiving news of his mother's death nor necessarily to the period of time following her death.
[11] In summary, therefore, there is evidence of the plaintiff having symptoms of dysphoria or some mild form of depression. The comments concerning the plaintiff's symptoms in the medical documents are made in the context of his troubled family history and many convictions. There is, on the evidence before me, no connection made between the plaintiff not receiving the letter of March 1994 and the symptoms he complains of in this action. In the absence of any evidence of this causal relationship, there is no genuine issue for trial.
[12] Accordingly, the motion for summary judgment is granted and the plaintiff's action is dismissed. In view of the circumstances concerning the March 1994 letter which led to this action, there will be no order as to costs.
Judge
Ottawa, Ontario
December 5, 1997
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