Documentation:Torts/Intentional infliction of mental suffering

2026-10-25T05:05:03Z

ChloeMacVicar: I changed "plaintiff" to "defendant" twice because it incorrectly attributed the requirements of the defendant to the plaintiff

{{ Infobox Torts }}
{{SUBPAGENAME}} The tort of intentional infliction of mental suffering (IIMS), also called [https://en.wikipedia.org/wiki/Intentional_infliction_of_emotional_distress intentional infliction of emotional distress], recognises an individual's right at common law right to sue for [[Sandbox:Torts/Damages|damages]] for emotional suffering in certain circumstances.<ref>{{Cite web|last=Bernstein Law Group|first=|date=|title=Intentional Infliction of Emotional Distress|url=https://bernsteinlawgroup.ca/personal-injury/infliction-emotional-distress/|url-status=live|archive-url=|archive-date=|access-date=|website=Bernstein Law Group}}</ref> The tort represents a deviation from the common law rule "that damages for mere distress are not available."<ref name=":2" /> It is an intentional tort, as opposed to the tort of [[Sandbox:Torts/Negligence Mental injury|negligent infliction of mental injury]].

== Development of the tort ==
{| class="wikitable" style="float:right;margin-right;10px;width:30%"
! style="background-color:#CEE0F2" |''Wilkinson v. Downton'' summarized
|-
|This [https://www.quimbee.com/ Quimbee] video provides a summary of the case.<ref>{{Cite web|last=Quimbee|first=|date=19 April 2021|title=Wilkinson v. Downton Case Brief Summary {{!}} Law Case Explained|url=https://www.youtube.com/watch?v=aFtdBw4wpCA|url-status=live|archive-url=|archive-date=|access-date=|website=YouTube}}</ref>{{YouTube|id=aFtdBw4wpCA|width=100%|height=200pxd}}
|}
=== Origins ===
The conventional rule at common law, reflected in Lord Wensleydale's judgment in the 1861 House of Lords case of ''Lynch v. Knight'', was that "[m]ental pain and anxiety the law cannot value, and does not pretend to redress, when the unlawful act complained of causes that alone".<ref>''Lynch v. Knight'' (1861)'','' [http://www.commonlii.org/uk/cases/EngR/1861/822.pdf 11 ER 854] at 598, cited in ''Wilkinson v. Downton'', [https://www.bailii.org/ew/cases/EWHC/QB/1897/1.html <nowiki>[1897] EWHC 1 (QB) (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Wilkinson_v._Downton §3.1.1]) at para 5.</ref> In the late-nineteenth century English case of ''Wilkinson v. Downton'',<ref name=":1">''Wilkinson v. Downton'', [https://www.bailii.org/ew/cases/EWHC/QB/1897/1.html <nowiki>[1897] EWHC 1 (QB) (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Wilkinson_v._Downton §3.1.1]).</ref> the High Court of Justice considered whether a plaintiff could recover in tort for severe physical and mental harm suffered when the defendant had not physically violated her bodily integrity. The defendant had played a practical joke on the plaintiff, suggesting that the plaintiff's husband was injured and in the hospital. Upon hearing this, the plaintiff became severely distressed, exhibiting "vomiting and other more serious and permanent physical consequences...and entailing weeks of suffering and incapacity".<ref name=":13">''Wilkinson v. Downton'', [https://www.bailii.org/ew/cases/EWHC/QB/1897/1.html <nowiki>[1897] EWHC 1 (QB) (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Wilkinson_v._Downton §3.1.1]) at para 1.</ref> The court recognized the defendant's actions as tortious. The plaintiff was permitted to recover damages for "nervous shock" under what became known as the [https://en.wikipedia.org/wiki/Wilkinson_v_Downton tort in ''Wilkinson v. Downton''].<ref name=":1" />

==== Elements of the tort in ''Wilkinson v. Downton''====
"''The defendant has...wilfully done an act calculated to cause physical harm to the plaintiff—that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her.''"<ref name=":0">''Wilkinson v. Downton'', [https://www.bailii.org/ew/cases/EWHC/QB/1897/1.html <nowiki>[1897] EWHC 1 (QB) (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Wilkinson_v._Downton §3.1.1]) at para 3.</ref>

{| class="wikitable" style="width:50%"
! style="background-color:#E0CEF2" | Elements of the tort in ''Wilkinson v. Downton''
|-
|1. The defendant wilfully did an act,
|-
|2. calculated to cause the plaintiff physical harm, which
|-
|3. caused physical harm to the plaintiff.
|}The first two elements of this tort entail that the defendant wilfully did an act with the intention of causing physical harm to the plaintiff.<ref name=":0" /> These elements can be contrasted with the other [[Sandbox:Torts/Trespass to the person|trespass-to-the-person torts]], such as [[Sandbox:Torts/trespass person|battery]], where the defendant must have intended to interfere with plaintiff's bodily autonomy (say, by touching them), but need not have intended to cause any observable injury.<ref>''Bettel v. Yim'', [https://www.canlii.org/t/g16gv 1978 CanLII 1580 (ONCC)] at para 37.</ref> In ''Wilkinson v. Downton'', the court asked whether "the defendant’s act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind," and concluded that, in the circumstances, it could be.<ref>''Wilkinson v. Downton'', [https://www.bailii.org/ew/cases/EWHC/QB/1897/1.html <nowiki>[1897] EWHC 1 (QB) (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#3_1_1__Wilkinson_v__Downton__1897__EWHC_1__QB_ §3.1.1]) at para 4.</ref>

It is important to distinguish between malice and intent. Though the court accepted that the defendant had no "malicious purpose ... nor any motive of spite", the defendant was still be found liable.<ref name=":0" /> This is to say that just because the defendant may have been playing a prank with no "malicious purpose", this does not obfuscate the defendant of liability.

The final element of the tort in ''Wilkinson v. Downton'' is that the defendant's actions must have caused some physical harm.<ref name=":0" /> This again contrasts with other trespass-to-the-person torts, such as [[Sandbox:Torts/Intentional interference with land|trespass to land]], which are actionable ''per se''.<ref>''Entick v. Carrington'', [https://www.bailii.org/ew/cases/EWHC/KB/1765/J98.html <nowiki>[1765] EWHC KB J98 (BAILII)</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#7_1_1___Entick_v__Carrington__1765__19_State_Tr_1029__KB_ §7.1.1]).</ref> In ''Wilkinson v. Downton'', the evidence of the plaintiff's nervous shock and ensuing challenges, including vomiting, permanent physical consequences, and weeks of suffering and incapacity, satisfied this element.<ref name=":13" />

=== Further development ===
Following the decision in ''Wilkinson v. Downton'', the courts continued to develop the tort through the case law, such as in ''Janvier v. Sweeney'', which applied the tort of ''Wilkinson v. Downton''.<ref>''Janvier v. Sweeney'', [https://www.iclr.co.uk/document/1911000707/casereport_74251/html <nowiki>[1919] 2 KB 316</nowiki>].</ref>
{| class="wikitable" style="float:right;margin-left;10px;width:30%"
! style="background-color:#F2CEE0" | In the news
|-
! style="background-color:#FFF5FA" |''Freedom of speech in Rhodes v. OPO''<ref>''Rhodes v. OPO'', [https://www.bailii.org/uk/cases/UKSC/2015/32.html <nowiki>[2015] UKSC 32</nowiki>] [https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#3_2_1__Rhodes_v__OPO__2015__UKSC_32 (§3.2.1]).</ref>
|-
|The [https://www.youtube.com/user/uksupremecourt UK Supreme Court] hands down judgment:<ref>{{Cite web|last=UKSupremeCourt|first=|date=20 May 2015|title=James Rhodes v OPO (by his litigation friend BHM) and another|url=https://www.youtube.com/watch?v=kSjakSwUsdw|url-status=live|archive-url=|archive-date=|access-date=|website=YouTube}}</ref> {{YouTube|id=kSjakSwUsdw|width=100%|height=230px}}

Following this decision, Rhodes conducted interviews in which he emphasized the importance of being able to tell his story, including one with ''The Guardian'', which can be viewed [https://www.theguardian.com/law/video/2015/may/20/james-rhodes-we-cant-be-told-to-shut-up-video here].<ref>{{Cite news|url=https://www.theguardian.com/law/video/2015/may/20/james-rhodes-we-cant-be-told-to-shut-up-video|title=James Rhodes: 'We can't be told to shut up' - video|last=Adam Sich, Phil Maynard & Robert Booth|first=|date=20 May 2015|work=The Guardian|access-date=}}</ref>
|}The tort was further developed in ''Wainwright v. Home Office.''<ref name=":5">''Wainwright v. Home Office'', [https://www.bailii.org/uk/cases/UKHL/2003/53.html <nowiki>[2003] UKHL 53</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Wainwright_v._Home §3.1.2]).</ref> The House of Lords provided clarification regarding the role of intention in the tort, recognizing that in ''Wilkinson v. Downton'' it seemed that the judge had "devised a concept of imputed intention that sailed as close to negligence as [Wright J] felt he could go."<ref>''Wainwright v. Home Office'', [https://www.bailii.org/uk/cases/UKHL/2003/53.html <nowiki>[2003] UKHL 53</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Wainwright_v._Home §3.1.2]) at para 44.</ref> The House of Lords in this case considered that if the courts were to "abandon the rule that damages for mere distress are not available," more than this "imputed intention" would be required.<ref name=":2">''Wainwright v. Home Office'', [https://www.bailii.org/uk/cases/UKHL/2003/53.html <nowiki>[2003] UKHL 53</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Wainwright_v._Home §3.1.2]) at para 45.</ref> It was said that the defendant must either have "intended to cause harm or at least acted without caring whether he caused harm," thus suggesting that a standard of recklessness could satisfy the elements of the tort.<ref name=":2" /> The damage element was said to be satisfied by the plaintiff showing that they experienced a "recognized psychiatric injury".<ref>''Wainwright v. Home Office'', [https://www.bailii.org/uk/cases/UKHL/2003/53.html <nowiki>[2003] UKHL 53</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Wainwright_v._Home §3.1.2]) at para 47.</ref>
{| class="wikitable mw-collapsible mw-collapsed" style="width:65%"
! style="background-color:#E0CEF2; width:65%" |Elements of the tort per ''Wainwright v. Home Office<ref>''Wainwright v. Home Office'', [https://www.bailii.org/uk/cases/UKHL/2003/53.html <nowiki>[2003] UKHL 53</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Wainwright_v._Home §3.1.2]) at paras 44–45, 47.</ref>''
|-
|1. Defendant wilfully did an act;
|-
|2. calculated to cause the plaintiff harm, or was reckless as to it; and which
|-
|3. caused the plaintiff harm, specifically a "recognized psychiatric injury".
|}
In ''Rhodes v. OPO'', Lord Neuberger in the UK Supreme Court identified five elements that were considered generally to be essential to establishing the tort.<ref name=":11">''Rhodes v. OPO'', [https://www.bailii.org/uk/cases/UKSC/2015/32.html <nowiki>[2015] UKSC 32</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Rhodes_v._OPO §3.2.1]) at paras 107, 110–111, 115–116.</ref> This case, unlike the facts in ''Wilkinson v. Downton'', dealt with allegedly distressing statements that were also true. Lord Neuberger observed that it was unlikely that "a statement which is not untrue could give rise to a claim."<ref>''Rhodes v. OPO'', [https://www.bailii.org/uk/cases/UKSC/2015/32.html <nowiki>[2015] UKSC 32</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Rhodes_v._OPO §3.2.1]) at para 107.</ref> Lord Neuberger also sought to further qualify the types of statements for which a defendant could be held liable, stating that there could possibly be a "test of 'justification or reasonable excuse'" or a requirement that the statement be "gratuitous," as well as that the statement must be pointed towards the claimant, rather than to a broad group.<ref>''Rhodes v. OPO'', [https://www.bailii.org/uk/cases/UKSC/2015/32.html <nowiki>[2015] UKSC 32</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Rhodes_v._OPO §3.2.1]) at paras 110, 115.</ref> Moreover, rather than a requirement that the defendant intentionally ''or'' recklessly caused harm, this conception of the tort required that the plaintiff intended to cause distress.<ref>''Rhodes v. OPO'', [https://www.bailii.org/uk/cases/UKSC/2015/32.html <nowiki>[2015] UKSC 32</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Rhodes_v._OPO §3.2.1]) at paras 112–114.</ref> Finally, Lord Neuberger conceived of the tort as addressing a broader scope of damage beyond only recognized psychological harms.<ref>''Rhodes v. OPO'', [https://www.bailii.org/uk/cases/UKSC/2015/32.html <nowiki>[2015] UKSC 32</nowiki>] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Rhodes_v._OPO §3.2.1]) at para 116.</ref>

{| class="wikitable mw-collapsible mw-collapsed" style="width:65%"
! style="background-color:#E0CEF2" |Elements of the tort per ''Rhodes v. OPO<ref name=":11" />''
|-
|1. Defendant's conduct must be "gratuitous" or "without justification or reasonable excuse";
|-
|2. "Intention...to cause the plaintiff distress";
|-
|3. "Directed at the claimant", not as a member of the group;
|-
|4. Caused the plaintiff "significant distress", but "not ... limited to those who can establish that they suffered from a recognised psychiatric illness"; and,
|-
|5. Possibly, a false statement.
|}

== Intentional infliction of mental suffering in Canada ==

{| class="wikitable" style="float:right;margin-left;10px;width:30%"
! style="background-color:#F2CEE0 " | In the news
|-
! style="background-color:#FFF5FA " |''Following Fitzpatrick v. Orwin, Squires & Squires''
|-
|The Squires' ordeal, which involved them suing their neighbour for IIMS,<ref name=":9">''Fitzpatrick v. Orwin'', [https://www.canlii.org/en/on/onsc/doc/2012/2012onsc3492/2012onsc3492.html 2012 ONSC 3492] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#3_2_2__Fitzpatrick_v__Orwin__Squires__Squires__2012__ONSC_3492 §3.2.2]).</ref> was captured in the National Post story, [https://nationalpost.com/news/canada/neighbourly-dispute-ends-with-400000-bill-after-hunter-dumped-bloody-coyote-carcass-on-couples-truck "Neighbourly dispute ends with $400,000 bill after hunter dumped bloody coyote carcass on couples' truck"].<ref name=":14" /> The story notes the Squires' concerns that Fitzpatrick would never pay.<ref name=":14">{{Cite news|url=https://nationalpost.com/news/canada/neighbourly-dispute-ends-with-400000-bill-after-hunter-dumped-bloody-coyote-carcass-on-couples-truck|title=Neighbourly dispute ends with $400,000 bill after hunter dumped bloody coyote carcass on couples' truck|last=Brean|first=Joseph|date=17 February 2014|work=National Post|access-date=}}</ref> Their story was also discussed in the real estate column [https://www.thestar.com/business/personal_finance/2014/02/21/think_carefully_before_suing_your_neighbour.html "Think carefully before suing your neighbour"].<ref>{{Cite news|url=https://www.thestar.com/business/personal_finance/2014/02/21/think_carefully_before_suing_your_neighbour.html|title=Think carefully before suing your neighbour|last=Weisleder|first=Mark|date=21 February 2014|work=The Toronto Star|access-date=}}</ref>
|-
! style="background-color:#FFF5FA" |''Aftermath of Boucher v. Wal-Mart''
|-
|CBC's [https://www.youtube.com/watch?v=P6PsgAqES2s "Workplace Bullying: The Silent Epidemic"], below, features Meredith Boucher, a woman who sued Wal-Mart for IIMS,<ref name=":10">''Boucher v. Wal-Mart'', [https://www.canlii.org/en/on/onca/doc/2014/2014onca419/2014onca419.html 2014 ONCA 419] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#3_2_3__Boucher_v__Wal_Mart__2014__ONCA_419 §3.2.3]). </ref> and details her experience.<ref>{{Cite web|last=CBC News: The National|first=|date=12 June 2014|title=Workplace Bullying: The Silent Epidemic|url=https://www.youtube.com/watch?v=P6PsgAqES2s|url-status=live|archive-url=|archive-date=|access-date=|website=YouTube}}</ref>{{YouTube|id=P6PsgAqES2s|width=100%|height=150}}

The article [https://www.cbc.ca/news/business/workplace-bullying-a-major-concern-in-canada-says-woman-who-sued-wal-mart-1.2673109 "Workplace bullying a major concern in Canada, says woman who sued Wal-Mart"]similarly outlines Boucher's experience, including that, at the time of publication, Boucher had been unable to find work, while Pinnock continued working for Wal-Mart, namely managing a store in Ancaster.<ref>{{Cite news|url=https://www.cbc.ca/news/business/workplace-bullying-a-major-concern-in-canada-says-woman-who-sued-wal-mart-1.2673109|title=Workplace bullying a major concern in Canada, says woman who sued Wal-Mart|last=|first=|date=12 June 2014|work=CBC|access-date=}}</ref>
|-
! style="background-color:#FFF5FA" |''Lu v. Shen turned criminal''
|-
|In 2021, a feud between two women, which included mutual lawsuits for IIMS amongst other claims,<ref name=":7">''Lu v. Shen'', [https://www.canlii.org/en/bc/bcsc/doc/2020/2020bcsc490/2020bcsc490.html 2020 BCSC 490] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#3_2_4__Lu_v__Shen__2020__BCSC_490 §3.2.4]).</ref> took a turn for the worse when one allegedly stabbed the other.<ref name=":4">{{Cite news|url=https://www.cbc.ca/news/canada/british-columbia/court-stabbing-feud-security-1.6041316|title=Bitter feud spills over into bloodshed with B.C. woman accused of stabbing rival in courthouse|last=Proctor|first=Jason|date=26 May 2021|work=CBC|access-date=}}</ref> This took place inside Vancouver's BC Supreme Court building where Lu had sought to argue that Shen was in contempt of court.<ref name=":4" /> The story was detailed in the article "[https://www.cbc.ca/news/canada/british-columbia/court-stabbing-feud-security-1.6041316 Bitter feud spills over into bloodshed with B.C. woman accused of stabbing rival in courthouse"]<ref name=":4" />. As a result, Shen was eventually charged with attempted murder, amongst other charges.<ref>{{Cite news|url=https://www.cbc.ca/news/canada/british-columbia/feud-attempted-murder-rivals-court-1.6048813|title=Stabbing in B.C. courtroom feud results in attempted murder charge|last=Proctor|first=Jason|date=1 June 2021|work=CBC|access-date=}}</ref> Developments regarding Shen's trial were documented in the Global News article "[https://globalnews.ca/news/8741154/bc-courtroom-stabbing-trial/ Trial of woman accused of attempted murder inside B.C. courtroom hears of chaotic, bloody scene"]<ref>{{Cite news|url=https://globalnews.ca/news/8741154/bc-courtroom-stabbing-trial/|title=Trial of woman accused of attempted murder inside B.C. courtroom hears of chaotic, bloody scene|last=Boynton, Sean & Rumina, Daya|first=|date=6 April 2022|work=Global News|access-date=}}</ref>
|}

=== The ''Prinzo Test'' ===
In Canada, the doctrine commonly applied in claims of IIMS is known as the ''Prinzo t''est.<ref name=":8">''Fitzpatrick v. Orwin, Squires & Squires'', [https://www.canlii.org/en/on/onsc/doc/2012/2012onsc3492/2012onsc3492.html 2012 ONSC 3492] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Fitzpatrick_v._Orwin §3.2.3]) at paras 117–18.</ref> The test was initially developed by Justice McLachlin in a BC Supreme Court decision—''Rahemtulla v. Vanfed Credit Union''.<ref>''Rahemtulla v. Vanfed Credit Union'', [https://www.canlii.org/en/bc/bcsc/doc/1984/1984canlii689/1984canlii689.html 1984 CanLII 689 (BCSC)].</ref> It was adopted nearly twenty years later in an Ontario Court of Appeal decision, ''Prinzo v. Baycrest Centre for Geriatric Care''.<ref name=":15">''Prinzo v. Baycrest Centre for Geriatric Care,'' [https://www.canlii.org/en/on/onca/doc/2002/2002canlii45005/2002canlii45005.html 2002 CanLII 45005 (ONCA)].</ref>

{| class="wikitable"; style="width:65%"
|+
!style="background-color:#E0CEF2" | The ''Prinzo Test<ref name=":15" /><ref>''Fitzpatrick v. Orwin'', [https://www.canlii.org/en/on/onsc/doc/2012/2012onsc3492/2012onsc3492.html 2012 ONSC 3492] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#3_2_2__Fitzpatrick_v__Orwin__Squires__Squires__2012__ONSC_3492 §3.2.2]) at paras 117–18.</ref>''
|-
|1. The defendant's conduct was flagrant and outrageous;
|-
|2. it was calculated to produce harm; and,
|-
|3. it resulted in a visible and provable injury to the plaintiff.
|}

===== Flagrant and outrageous conduct =====
The first element of the ''Prinzo'' test is that the defendant's conduct was flagrant and outrageous.<ref name=":8" /> This is to say, there is a line drawn between "mere insult" and conduct that is actionable in tort.<ref name=":12" /> In the case that this test was developed, the court noted that the conduct in ''Wilkinson''—as illustrated in the accompanying video above—was flagrant and extreme.<ref name=":12">''Rahemtulla v. Vanfed Credit Union'', [https://www.canlii.org/en/bc/bcsc/doc/1984/1984canlii689/1984canlii689.html 1984 CanLII 689 (BCSC)] at para 49.</ref> Other examples of flagrant and outrageous conduct that have been recognized by the courts include leaving a dead coyote on a neighbour's truck,<ref name=":8" /> and persistently targeting and attacking the plaintiff online.<ref>''Lu v. Shen'', [https://www.canlii.org/en/bc/bcsc/doc/2020/2020bcsc490/2020bcsc490.html 2020 BCSC 490] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Lu_v._Shen §3.2.5]) at paras 260–67.</ref>

===== Calculated to produce harm =====
The second element of the ''Prinzo'' test, again derived from the tort in ''Wilkinson v. Downton'', entails that the defendant actually intended to cause harm.<ref name=":8" /> In ''Prinzo'', the court expressed that this element is met when "the actor desires to produce the consequences that flow from the act, or if the consequences are known to be substantially certain to follow."<ref>''Prinzo v. Baycrest Centre for Geriatric Care,'' [https://www.canlii.org/en/on/onca/doc/2002/2002canlii45005/2002canlii45005.html 2002 CanLII 45005 (ONCA)] at para 45.</ref> Intent to cause harm can be inferred from the defendant's conduct. It is not an objective test—it was held ''Boucher v. Wal-Mart'' that this element cannot be fulfilled on the basis that the defendant "'ought to have known' the consequences were substantially certain to occur".<ref>''Boucher v. Wal-Mart'', [https://www.canlii.org/en/on/onca/doc/2014/2014onca419/2014onca419.html 2014 ONCA 419] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Boucher_v._Wal-Mart §3.2.4]) at para 43.</ref>

===== Visible and provable injury =====
Finally, the plaintiff must show that they actually suffered some visible and provable injury because of the actions of the defendant.<ref name=":8" /> Some examples of when the court found there to be visible and provable injury include evidence given by a physician that the plaintiff suffered from "severe depression, suicidal ideation, insomnia, agitation, irritability and anxiety."<ref>''Fitzpatrick v. Orwin, Squires & Squires'', [https://www.canlii.org/en/on/onsc/doc/2012/2012onsc3492/2012onsc3492.html 2012 ONSC 3492] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Fitzpatrick_v._Orwin §3.2.3]) at para 130.</ref> But expert medical evidence is not essential provided there is evidence to satisfy the court that the plaintiff suffered sufficiently serious injury as a result of the defendant's conduct.<ref name=":3">''Rahemtulla v. Vanfed Credit Union'', [https://www.canlii.org/en/bc/bcsc/doc/1984/1984canlii689/1984canlii689.html 1984 CanLII 689 (BCSC)] at para 49.</ref>

Failure by the plaintiff to lead any evidence of a visible and provable injury will doom their claim.<ref>''Lu v. Shen'', [https://www.canlii.org/en/bc/bcsc/doc/2020/2020bcsc490/2020bcsc490.html 2020 BCSC 490] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Lu_v._Shen §3.2.5]) at paras 272–73.</ref> For example, in ''Lu v. Shen'', the court stated that:<blockquote>[N]either Ms. Lu nor Ms. Shen has satisfied her evidentiary burden on this element. Although medical evidence is not essential, I have no independent or objective evidence from anyone. The evidence from each of Ms. Lu and Ms. Shen is, for the most part, conclusory and self-interested. I accept that Ms. Lu’s and Ms. Shen’s interactions with one another, spanning more than a decade, have been unpleasant and very upsetting to both of them. However, to make out a claim for intentional infliction of emotional suffering, a plaintiff must demonstrate “visible and provable illness”. Neither Ms. Lu nor Mr. Shen have done that, in my opinion.<ref>''Lu v. Shen'', [https://www.canlii.org/en/bc/bcsc/doc/2020/2020bcsc490/2020bcsc490.html 2020 BCSC 490] ([https://www.canlii.org/en/commentary/doc/2021CanLIIDocs1859#_Lu_v._Shen §3.2.5]) at para 272 [citations omitted].</ref></blockquote>

== Discussion questions ==

* What are the concerns regarding recognizing a tort that is focused on words, rather than physical contact?
* Why was it considered appropriate to develop the tort in ''Wilkinson v. Downton''?<ref name=":1" /> Contrast with other situations when the courts have not found it appropriate to develop a new tort (e.g. [[Sandbox:Torts/harassment|harassment]]).
* How do the conceptions of the ''tort in'' ''Wilkinson v. Downton'', the conception of the tort per ''Rhodes v. OPO'', and the modern tort per the ''Prinzo Test'' compare and differ?

== Quiz ==
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[[Category:Intentional Torts]]
[[Category:Mental Suffering]]
[[Category:Canada]]
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Documentation:Torts/Intentional infliction of mental suffering