The Tort of Intentional Infliction of Mental Distress

September 26th, 2013 by Dan Stone

This blog is written by our summer student, Ira Marcovitch.

The tort of intentional infliction of mental distress has always been difficult to prove and, in a decision recently released, the Ontario Superior Court refused to find the existence of the tort in yet another factual scenario.

The Tort Of Intentional Infliction Of Mental DistressIn Raposo v. Dasilva, the plaintiff was suing his sister, the defendant, in connection with certain events surrounding the passing of their father. Mr. Raposo alleged that Ms. Dasilva had intentionally failed to notify him of his father’s declining health, thus denying him the chance to say his final farewells, and that she refused to let him plan or act as a pallbearer in his father’s funeral. Both events, Mr. Raposo alleges, caused him considerable mental distress, and were done intentionally by his sister.

In a motion before the court, Ms. Dasilva moved to have her brother’s pleadings struck for disclosing no reasonable cause of action. She asserted that the acts alleged to have been committed were a result of inaction, not action, and thus could not form the basis of the tort.

In deciding the motion, the court reiterated the accepted test for intentional infliction of mental suffering. The three elements necessary are:

  1. An act or statement by the defendant that is extreme, right flagrant or outrageous;
  2. The act or statement is calculated to produce harm; and
  3. The act or statement causes visible or provable harm.

With regards to the first incident, the judge found that the failure to warn Mr. Raposo of his father’s imminent mortality constituted inaction, not action, and that there was no legal authority for finding that such would constitute the tort.

With regards to the second incident, the court numerous cases that stood for the proposition that courts had no “business in adjudicating the rituals and observations of funeral rites.” Additionally, the judge noted that the intra-familial nature of the dispute was grounds for the court not to get involved, finding that courts shouldn’t be the proving grounds for alleged slights and compensation between family members. Finally, the judge applied the Supreme Court’s decision in Frame v. Smith, for the proposition that, should courts embroil themselves in these types of disputes, it would be an “invitation to unhappy siblings” to “engage is potentially petty and spiteful litigation.”

Consequently, and with sympathy to the plaintiff, the judge granted the motion and struck Mr. Raposo’s statement of claim for disclosing no reasonable cause of action.

To read the full decision on The Tort Of Intentional Infliction Of Mental Distress:
http://www.canlii.org/en/on/onsc/doc/2013/2013onsc3298/2013onsc3298.pdf

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