Supreme Court swats down fly-in-the-water case


From Friday's Globe and Mail

May 22, 2008 at 7:46 PM EDT

The Supreme Court of Canada has swatted down a $341,775 damages award to a hairdresser from Windsor, Ont., who became depressed and phobic after finding a dead fly in his bottled water.

In a 9-0 judgment Thursday, the court said Culligan of Canada Ltd. cannot be found liable for psychological damages suffered by Waddah (Martin) Mustapha because it could not have reasonably foreseen his extreme reaction to finding the fly.

“Mustapha failed to show that it was foreseeable that a person of ordinary fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install,” Chief Justice Beverley McLachlin wrote for the court.

To succeed, she said, Mr. Mustapha would have had to show that Culligan knew he was particularly vulnerable to the sort of stressed experience he endured.

“In this case, however, there was no evidence to support a finding that Culligan knew of Mr. Mustapha's particular sensibilities,” the court said. “Unusual or extreme reactions to events caused by negligence are imaginable – but not reasonably foreseeable.”

A Lebanese immigrant, Mr. Mustapha is married with two daughters. He co-owns a successful hairstyling business with his wife. His lawyer, Paul Pape, said Thursday that Mr. Mustapha, 47, was philosophical when he lost the case – even though he faces paying legal costs for both sides that could reach $500,000.

“The problem with this case was that the facts were seen as silly and risible,” Mr. Pape said. “Mr. Mustapha stood up to be counted, and he got slapped down. The real problem was that each judge would have had to go back to his or her wife and say: ‘I just awarded $300,000 to a guy who saw a fly in his water bottle.'”

Mr. Mustapha installed Culligan water dispensers at his business and at his home in 1986, and his family began to drink nothing but the company's bottled water.

Ruling in favour of his lawsuit in 2005, Mr. Justice John Brockenshire of the Ontario Superior Court found that Mr. Mustapha had become edgy, argumentative and depressed. He couldn't sleep, had regular nightmares and refused to even drink coffee because it contained water.

“He pictures flies walking on animal feces or rotten food and then being in his supposedly pure water,” Judge Brockenshire said. “He has been constipated, is bothered by revolting mental images of flies on feces, etc., can no longer take long and enjoyable showers and instead, after lengthy treatment, can only take perfunctory showers with his head down so the water does not strike his face.”

Mr. Pape said Thursday that what really unsettled his client was not so much the sight of the dead fly on Nov. 21, 2001, but a feeling that he and his family may have unwittingly consumed any number of insect parts since 1986.

Whether or not his reaction was typical of what one might expect, Mr. Pape said, Culligan ought to have been found liable.

However, Chief Justice McLachlin faulted Judge Brockenshire for considering Mr. Mustapha's subjective response to his discovery – rather than considering objectively what a person with average sensibilities might have felt.

She also attempted to set some guidelines for how damage arising from psychiatric harm should be assessed in future. “Psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset,” she said. “Personal injury at law connotes serious trauma or illness.

“I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept,” Chief Justice McLachlin said.

Mr. Pape said it was gratifying that the court rejected any suggestion that his client had been a malingerer. Indeed, Chief Justice McLachlin noted in her ruling that Mr. Mustapha suffered from “a major depressive disorder with associated phobia and anxiety.

“This psychiatric illness was debilitating and had a significant impact on his life; it qualifies as a personal injury at law,” she said. “It follows that Mr. Mustapha has established that he sustained damage.”


Ottawa Mens, from Ottawa, Canad) wrote: What happened to Summary Judgment? A fly in a bottle is of such public importance that it passes the test for a "genuine issue for trial" and is of such public importance that it reaches the Supreme Court of Canada but notice that a very large number of male self represented litigants in family court end up with draconian "summary judgments" simply to "end the litigation". Fathers in family court are treated as vermin to be exterminated. Now in Alberta, 10,000 fathers have lost their driver's license. A very high number of those cannot afford to go to court to seek a variation and an increasing number cannot seek a variation because of draconian orders that effectively permanently prevent them from seeking a variation. Many Ontario Superior Court Judges deem a father seeking to have a relationship with his children, something not worth even discussing, they just "strike pleadings" and issue orders for 'security for costs" and or "restraining orders" banishing fathers from entire cities or limiting their ability to travel in any city or province to effectively deport them from the Province or Canada. So much for the right of access to the courts. The very people entrusted to protect citizens rights to the courts flagrantly abuse that power. The sheer number of father's so abused by our courts is reaching very high numbers. It appears that some judges who are well known as "underbellies" or "the worst judge in town" make such orders apparently for nothing more than sadistic satisfaction or entertainment value. Other reasons include revenge, for having to put up with having one of those less than human characters in the courtroom that by accident of birth was born with testicles. Ottawa Mens Centre dot com


Posted 23/05/08 at 1:49 AM EDT