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Torts - Intentional Infliction of Mental Suffering (2). Kudrocova v. Waterloo Region District School Board
In Kudrocova v. Waterloo Region District School Board (Div Court, 2023) the Divisional Court considered the law of intentional infliction of mental suffering:[29] Intentional infliction of mental suffering has three elements which must be pleaded and supported by factual allegations: “(1) conduct that is flagrant and outrageous, (2) calculated to produce harm (3) resulting in a visible and provable injury”: Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474, 161 O.A.C. 302, at para. 43, citing Rahemtulla v. Vanfed Credit Union, 1984 CanLII 689 (B.C.S.C.). More recently, in Colistro v. Tbaytel, 2019 ONCA 197, 145 O.R. (3d) 538, at para. 15, the Court of Appeal confirmed these three elements of the tort, noting that the first and third elements are objective, while the second is subjective.
[30] Looked at objectively from the standpoint of the “reasonable bystander aware of all the facts” (Colistro, at para. 55), the conduct asserted, if proven, cannot rise to a level that is “flagrant and outrageous.” The allegations, as the motion judge put it, are in the nature of “administrative complaints.” Absent pleading some recognized wrongful or illegal conduct, which the Respondent has failed to do, the conduct asserted is not “flagrant” or, as it has been put by other judges, “conspicuously offensive”, “so obviously inconsistent with what is right or proper as to appear to be a flouting of law or morality”, “shockingly bad or excessive”, or “glaring, scandalous, or conspicuously wrongful”: Eks v. Tadeu, 2019 ONSC 3745, at para. 117, citing R. v. Harris (1987), 1987 CanLII 181 (ON CA), 20 O.A.C. 26, 57 C.R. (3d) 356 (C.A.), at pp. 25-26, leave to appeal refused, [1987] S.C.C.A. No. 395; R. v. Jones (1988), 1988 CanLII 3012 (BC CA), 24 B.C.L.R. (2d) 180, at para. 13 (C.A.), leave to appeal refused, [1988] S.C.C.A No. 392.
[31] Accordingly, viewed objectively, it is plain and obvious that the first element of the tort of intentional infliction of mental suffering is not supported by the facts pleaded, and the Respondent has no reasonable cause of action based on it.
[32] I also have concerns with the second and third elements of the tort. The Respondent asserts for each event alleged to be wrongful that the actions were “calculated to produce harm.” No facts are pleaded to support an intention to inflict harm on the Respondent other than, arguably, the knowledge that the Respondent had joint custody of the child. What is pleaded is no more than an assertion that because the Appellants knew of the joint custody order they knew that harm would occur. However, it must be pleaded, and proven, that each defendant “intended to produce the kind of harm that occurred or have known that it was almost certain to occur”: Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, 120 O.R. (3d) 481, at para. 44, Laskin J.A., citing Piresferreira v. Ayotte, 2010 ONCA 384, 319 D.L.R. (4th) 665, leave to appeal refused, [2010] S.C.C.A. No. 283. On the other hand, it is not necessary for the defendant to have intended to cause a particular psychological injury so long as it was known that psychological injury of some kind was almost certain to occur. While this element may be adequately asserted, it strikes me as very unlikely that the Respondent will be able to prove such subjective wrongdoing by any, let alone all, of the individual Appellants.
[33] Turning to the third element of the tort, the Respondent’s damage claim asserted that the Appellants’ actions “resulted in Ms. Kudrocova sustaining a visible and provable medical illness.” Later in the pleading, it is asserted that the Respondent experienced “severe psychological suffering, profound shock, sleep disturbance, nightmares, headaches, dizziness, anxiety, depression, mental anguish, loss of cognitive ability, personality changes, psychological changes, behavioural changes, emotional trauma, and diminished energy.” This is a sweeping assertion of damage inconsistent with the constraints of this tort, in which a plaintiff must plead the specific harm caused by specific acts. As Hoy A.C.J.O. stated in Colistro, at para. 26, “The bar is necessarily high where a defendant is to be liable for all of the consequences of an intentional wrongful act.” Here, the Respondent has alleged intentional infliction of mental suffering arising from many incidents involving different Appellants. In my view, the pleading would, at the very least, require much more specificity as to what actions caused what harm if the cause of action was tenable at all.
[34] Policy concerns that prevent recognizing a duty of care for school employees also apply to the application of the tort of intentional infliction of mental suffering to this situation. In Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99, at para. 47, Wilson J., dissenting, discussed the concern with extending the tort to custody and access disputes where spouses “are undergoing a great deal of emotional trauma which they believe is caused by the other spouse.” Those concerns exist in cases like the present one, where teachers and principals are put in the middle of custody battles.
[35] Here, the Respondent was engaged in a bitter custody dispute which appears to be ongoing given the decision of the Court of Appeal earlier this year. The issue of “parental alienation” by the father was raised by the Respondent in the family proceeding. MacLeod J. noted, at para. 31 of his decision, that therapeutic intervention had failed, and the parties remain “polarized.”
[36] Although the Respondent argues that she is not seeking damage for alienation of affection, this action is grounded in the Respondent’s position as a custodial parent, claiming harm arising from actions, or lack of action, taken by the school boards and their employees relating to the Respondent in that capacity. Her general claim for damages, asserting serious psychological suffering and emotional trauma, must therefore be considered in the context of the custody battle and her position as a parent.
[37] In Frame v. Smith, the Supreme Court declined to recognize a tort of “alienation of affection.” LaForest J. referred to the long-standing refusal of the common law to recognize such a tort in suits between parents, but he also recognized, more broadly, the “undesirability of provoking suits within the family circle”, and beyond, “for interfering with rights of access.” As he stated, “the disruption of the familial and social environment so important to a child's welfare may well have been considered reason enough for the law's inaction, though there are others”: para. 9. Those other reasons include the challenge of defining such a tort. As LaForest J. observed at para. 10, “it seems to me that there is no clear boundary between ordinary interruptions to access and sustained, putatively actionable interference, and where the point is reached where permissible advice intended for the child's benefit stops and malicious obstruction begins is virtually impossible to divine.”
[38] The Respondent is clearly unhappy with how the Appellants responded to her during the time period of the claim. However, absent a clear factual allegation of flagrant and outrageous conduct intended to cause direct harm to her, school boards and their employees, who, I repeat again, have conflicting duties, should not be drawn into the collateral damage of custody disputes.
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