You’ll rarely hear an “emotional distress” suit formally discussed in Alberta courts; they’re usually called “torts.” A tort is any wrongful or negligent act that leads to someone else getting hurt, suffering a loss, or coming to harm. Any loss generates a tort case. You know these cases best as personal injury cases.
It’s also rare to sue for emotional distress alone, even if someone else’s actions due cause you considerable emotional damage. Emotional distress is often a cornerstone part of a broader personal injury case where physical injuries have been sustained.
Yet there are certain cases where emotional damage is the only damage, and there are times when it may be advantageous to do so. For example, if you work for an employer who has allowed you to be consistently bullied and harassed on the job then you might have the grounds for an emotional distress claim. If someone sexually assaulted you then you can certainly sue either them, the organization they were a part of, or both in many cases.
Alberta courts may not speak of emotional distress cases, but they do take the infliction of mental injury very seriously indeed.
What is emotional distress?
Emotional distress is psychological damage caused by an injury, incident, or pattern of behavior inflicted on another person. It can encompass anxiety, depression, PTSD, and a lack of ability to concentrate or perform normal tasks.
According to the Canadian Supreme Court, it is not necessary to prove a diagnosis of a recognized psychiatric or psychological injury in order to bring forth an emotional distress claim. This was established during the 2017 case Saadati v. Moorhead.
The Saadati case was a car accident case wherein the trial judge awarded the claimant damages for mental injury based on the testimony of lay witnesses rather than on the testimony of expert witnesses brought before the court. The lay witnesses were Saadati’s friends and family members, who told the judge that Saadati’s personality had changed for the worse after the accident. The courts awarded $100,000 for non-pecuniary damages. That is, Saadati received a $100,000 pain and suffering award.
The courts ruled that “confining compensable mental injury to conditions that are identifiable with reference to psychiatric diagnostic tools is inherently suspect as a matter of legal methodology. While, for treatment purposes, an accurate diagnosis is obviously important, a trier of fact adjudicating a claim of mental injury is not concerned with diagnosis, but with symptoms and their effects. There is no necessary relationship between reasonably foreseeable mental injury and a diagnostic classification scheme. A negligent defendant need only to have been shown to have foreseen injury, and not a particular psychiatric illness that comes with its own label. The trier of fact’s inquiry should be directed to the level of harm that the claimant’s particular symptoms represent, not whether a label can be attached to them.”
What are the symptoms of emotional distress?
Common signs include:
- Loss of appetite
- Sleeping too much or too little
- Having little or no energy
- Unexplained aches and pains
- Feeling helpless, worthless, hopeless, or guilty
- Self-medication: i.e., smoking, drinking, or doing drugs
- Thoughts of self-harm
All of these symptoms can interfere with your home, school, or work life. They can interfere with your relationships. People who want to sue over emotional distress aren’t being frivolous. They’re pointing to real damage that has been done to their lives as a result of someone else’s actions.
When can I sue for emotional distress?
The law allows for two causes of action in regards to emotional distress: the intentional infliction of distress and the negligent infliction of distress.
Intentional infliction of mental suffering cases could include racial insults, sex discrimination claims, false imprisonment claims, defamation claims, or cyberbullying claims. They aren’t necessarily easy to win: the plaintiff must prove that the defendant’s conduct was flagrant, outrageous, and calculated to harm. The plaintiff must also prove the defendant suffered a visible and provable illness as a direct result of the plaintiff’s behavior.
Defendants often mount defences based on the second test, as the intent is very difficult to prove.
Negligent infliction of distress is the type of distress that most often comes up in car accident cases. Nobody means to get into a car accident, truck accident, or motorcycle accident. Nevertheless, these accidents can cause severe pain and distress to their victims.
How can I prove emotional distress?
In the Saadati case, the courts stated that claimants must show that the disturbance is serious and prolonged, and rises above the ordinary annoyances, anxieties, and fears that come with living in civil society. They must show that these disturbances are the direct result of their accident or injury.
If a defendant wishes to rebut the claim, they can call expert witnesses of their own to establish that the accident or injury did not cause any mental injury, “or at least any mental injury known to psychiatry,” (Saadati).
Of course, documentation of your distress is very helpful. This can include a formal psychiatric evaluation that can be brought before the court to strengthen your claim. It’s also helpful to keep a daily diary which shows the effects your emotional distress could be having on your life, as well as to bring in the testimony of family members, friends, or employers who can attest to personality changes, difficulties with focus, memory, or cognition, or other signs of emotional distress.
Finally, the severity of the accident itself can help support a claim of emotional distress. There are simply times when any reasonable person could see that the incident in question would cause such symptoms.
The Emotional Distress Claims Process
You will start an emotional distress claim almost exactly the same way you’d start any personal injury claim: by going to an experienced lawyer who can review the facts of your case and determine whether you have a winnable one. Your case will then enter the discovery period. Evidence will be gathered, examinations for discovery will be done, and both sides will prepare themselves for litigation.
For the most part, the party that will be paying a claim will almost always be some sort of insurance company. For example, if your manager inflicted emotional distress upon you then the company’s liability insurance is often going to step in to pay the claim. If you got into a car accident the at-fault driver’s insurance company will pay. They’ll generate their own lawyers and mount their own defence.
In rare instances some individual will be held personally liable. Actually recovering funds from these individuals can be difficult as they may not have the resources to pay the claim. You and your lawyer will have to decide if any given claim is worth pursuing.
Long before a court date is set, your case may either be referred to the alternative dispute resolution (ADR) process, or settlement conferences may begin.
A settlement conference is an informal meeting of both side’s lawyers. They make offers for settlement that the other party either rejects or accepts, and try to drive those offers up or down by pointing to strengths or weaknesses in the other party’s case.
ADR is a much more formal version of this process. In ADR, both parties meet with a trained mediator, who is usually another lawyer or a former judge. The mediator will get both sides of the story, then put each party in its own separate room. The mediator will then travel back and forth between rooms to try to bring each party to an agreement.
92% of cases settle this way. Usually both the plaintiff’s lawyers and the defendant’s lawyers know exactly what a potential case is worth. Here in Alberta pain and suffering damages are already capped out at $370,000 so no settlement is going to get much higher than that plus pecuniary damages. The other party might want to settle on the low end of what the case is worth and your lawyer on the high end. In truth, a reasonable settlement will land somewhere in the middle.
In the other 8% of cases the defendant usually refuses to put forth any kind of a reasonable offer, often because they believe they have a strong enough case to avoid paying you anything at all. When that happens you’ll need true litigators on your side.
Get Help Today
You won’t get any additional emotional distress when you call us, because you don’t have to come up with a big retainer or worry about paying some exorbitant hourly fee. That’s because we work on contingency. We don’t get paid unless you get paid.
You have nothing to lose by calling us. We’ll review the facts of your case, answer your questions, and help determine next steps.
Most of the lawyers in our office have 20 to 30 years of experience handling personal injury cases for Alberta residents just like you. We’re known as savvy negotiators and fearless litigators. We fight hard to protect your rights and your interests throughout any personal injury case.
Call (780) 413-9777 to get matched with one of our top-notch personal injury lawyers today.