Finkelstein v. Rialp,


2008 BCSC 303

Date: 20080311
Docket: 07-3609
Registry: Victoria


Kenneth H. Finkelstein



Susan Rialp


Before: The Honourable Mr. Justice R. D. Wilson

Reasons for Judgment

Appearing in Person:

K. H. Finkelstein

Counsel for the Defendant:

A. L. Eged

Date and Place of Trial/Hearing:

February 12, 2008


Victoria, B.C.


[1]                The plaintiff is the father of a student enrolled in a school in which the defendant is a teacher.

[2]                At paragraph 5 of his statement of claim, filed 11 September 2007, the plaintiff pleads:

5.         From September, 2006, through most of February, 2007 (hereafter referred to as the "Teaching Period"), the Defendant was the primary teacher for the Plaintiff's son.

[3]                Following a sub-heading "Intentional Infliction of Emotional Distress", the plaintiff pleads:

6.         During the Teaching Period, the Defendant purposely and maliciously worked to damage the self-esteem of the Plaintiff's son and, consequently, instill significant distress and anxiety upon the Plaintiff ...

[4]                Following the sub-heading "Causation and Damages", the plaintiff pleads:

20.       During the Teaching Period, as a result of the Defendant's actions and omissions, the Plaintiff ... [has] suffered and will continue to suffer loss and damages, which were foreseeable by the Defendant, as noted hereafter:

a.         Damage to self-esteem;

b.         Extreme mental distress, anguish, and suffering;

c.         Humiliation and embarrassment;

d.         Anxiety and worry; and

e.         Loss of dignity.

[5]                By motion dated 4 January 2008, the defendant seeks an order that the plaintiff's action be dismissed; and an order that the plaintiff pay special costs.  The motion is said to be authorized by Rule 19 and Rule 57 of the Rules of Court.

[6]                It became apparent on the hearing of the motion that the defendant relies on Rule 19(24)(a), the operative words of which are:

At any stage of a proceeding the court may order to be struck out or amended the whole or any part of [a] ... pleading ... on the ground that

(a)        it discloses no reasonable claim or defence as the case may be ...

and the court may grant judgment or order the proceeding to be ... dismissed and may order the costs of the application to be paid as special costs.

[7]                The defendant's position is based on the following premises.

[8]                First, the plaintiff's action sounds in the tort of intentional infliction of mental shock.

[9]                Second, to succeed in such an action, the plaintiff must plead and prove the following essential elements:

(i)         flagrant or outrageous conduct;

(ii)        calculated to produce harm; and

(iii)       resulting in a visible and provable illness.[1]

[10]            Third, the pleading is fatally flawed because it does not allege the material fact of a visible and provable illness, as required by the element numbered (iii), above.

[11]            Therefore, the statement of claim must be struck out and the action dismissed.

[12]            The plaintiff submits that by pleading "anxiety" he has pleaded a recognizable psychiatric illness.


[13]            For the purposes of this motion, the principles governing the disposition of the defendant's Rule 19(24)(a) application were expressed in Hunt v. Carey Canada Inc.,[2] in the following words:

... assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action?  As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be "driven from the judgment seat".  ... Only if the action is certain to fail because it contains a radical defect ranking with the others listed in Rule 19(24) ... should the relevant portions of a plaintiff's statement of claim be struck out ...

[14]            The defendant relies upon the reasoning in Young v. Borzoni.[3]

[15]            Mr. Young's action included a claim for damages for intentional infliction of nervous shock.  Mr. Young's statement of claim included the following allegation:

87.       The Defendants' conduct, as set out above, has caused severe emotional stress and mental anguish, and extreme despair.

[16]            A radical defect was found in that plea.  The court said, at paragraph 37:

In my opinion the pleaded material facts do not support the proposition that the suggested injuries were caused by the alleged actions of Mr. Borzoni.  Recognizable psychiatric illnesses, such as are defined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) for example, amount to visible and provable illnesses for the purposes of the tort of the intentional infliction of mental suffering.  However, emotional stress, mental anguish and despair, the emotional states pleaded by the appellants, are not generally accepted as amounting to "visible and provable illness" for the purposes of the tort of the intentional infliction of mental suffering.  ...

[17]            The court had previously made reference to an extract from Guay v. Sun Publishing Co., [1953] 2 S.C.R. 216 (S.C.C.) adopting this proposition from Pollock on Torts, 15th ed. at page 37:

In every case the question is whether the shock and the illness were in fact natural or direct consequences of the wrongful act or default; if they were, the illness, not the shock, furnishes the measurable damage, and there is no more difficulty in assessing it than in assessing damages for bodily injuries of any kind.

[18]            Seemingly then, there are two components to the third element referred to above to constitute a cause of action for intentional infliction of mental shock.  Namely, the emotional reaction to the offending conduct and a resulting recognizable psychiatric illness.

[19]            There are entries for "anxiety" as a form of mental disorder in the Diagnostic and Statistical Manual of Mental Disorders, 4th ed., 2000, American Psychiatric Association; and in Stedman's Medical Dictionary, 26th ed., 1995, Williams and Wilkin; and in Dorland's Illustrated Medical Dictionary, 27th ed., 1988, W. B. Saunders Co.


[20]            The defendant submits that the plea of "anxiety" must be read in the context of the other words used in paragraph 25 of the pleading.  In result, it is argued, the word amounts to nothing more than a repetitive plea of an emotional state, iterating mental distress, anguish, suffering, humiliation, embarrassment and worry.

[21]            This argument appears to invoke the notion of a "sceptical analysis" of the pleading.

[22]            In Young, at paragraph 30, the court said:

... it is not fundamentally wrong to look behind the allegations in some cases.  This can be taken from the statement of Estey J. in Operation Dismantle that the "rule ... does not require that allegations based on assumptions and speculation be taken as true.  ... No violence is done to the rule where allegations, incapable of proof, are not taken as proven."  This is also supported by the comment of Esson J.A. in Rogers that, "the process ... of subjecting the allegations in the pleadings to sceptical analysis in order to determine their true character, I consider that to have been an entirely appropriate procedure."

[23]            I am not persuaded that this pleading, at this stage of the litigation, per force, invokes the notion of "sceptical analysis".  The pleading may lack the precision of an Odgers or Bullen and Leake, but there is a plea sufficient to found the admissibility of evidence to prove a recognizable psychiatric illness.


[24]            The defendant's application is dismissed.  Costs will be in the cause, pursuant to Rule 57(12).

                   "R. D. Wilson, J."                    

The Honourable Mr. Justice R. D. Wilson

[1]           Young v. Borzoni, 2007 BCCA 16; 64 B.C.L.R. (4th) 157 (B.C.C.A.) at paragraph 24, citing Prinzo v. Baycrest Centre for Geriatric Care (2002), 60 O.R. (3d) 474 (Ont. C.A.), at paragraph 48.

[2]           [1990] 2 S.C.R. 959, at page 980.

[3]           Above, Footnote 1.