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Mental Health Awareness Day, Week, Month, Year….

Life is hard. Don’t kid yourself. Everyone has their own unique set of challenges and obstacles which they have to overcome.

Some are able to cope. Some aren’t. That’s just the way it goes.

In the past decade, there has been a concerted effort on the part of politicians, courts, employers, athletes and social media influences to recognize that mental health is a real issue. It’s not some made up thing in one’s head. It’s very real and can have a devastating impact on a person’s life.

COVID lockdowns have managed to put fuel on that mental health fire. If you were struggling with mental health issues before COVID lockdowns, one can only imagine how much more difficult things are dealing in a world locked down.

No more in person therapy. Now you need to have video counselling which is effective, but not likely as effective as the real thing in person.

The same concept applies to group therapy or group counselling sessions. That nice feeling of relief seeing your group and socializing (which is healthy) simply isn’t the same over ZOOM or over the phone.

Imagine needing to get medication from your pharmacy. Instead of a normal trip, it’s now like an army tactical mission trying to figure out the best time to go when it’s least busy, the route which will expose you to the fewest people, getting all of your gear in order (mask, gloves, face shield).

In my non medical experience as a personal injury lawyer, having people agree to participate in counselling, and then agreeing to trying medication to manage their mental health is not easy. COVID has added another excuse (or barrier) for people suffering from mental health to not participate in programs or treatment designed to help them get through tough times. It’s a dangerous downward spiral.

If personal injury lawyers, employers, politicians, athletes are able to recognize that mental health is a very real and pressing issue facing our society, then why is this not echoed by Judges as well?

The Court’s sentiment on mental health was echoed in the recent car accident trial of Syed v. Petrie, 2020 ONSC 2513. This decision was released fairly recently; on April 22, 2020

Here’s a few interesting points on this case:linkedin-2-300x300

  1. The Plaintiff was involved in a car accident. His injuries were so bad they were deemed catastrophic by his accident benefit insurer. That means the the injuries were very bad.
  2. The action was commenced in Brampton and thus the trial was supposed to take place in Brampton before a Brampton Jury. But because of space issues at the Brampton Courthouse, the trial needed to be heard in Kitchener. This is INSANE!!!! It would mean that the Plaintiff, his witnesses, family members, treating doctors etc. would need to drive 1+ hours in traffic each way from their homes in the Brampton area to Kitchener every day for trial! It would also mean that the jurors from Brampton would need to drive to the Brampton courthouse, and then be shuttled each day to the Courthouse in Kitchener each day for trial. The fatigue of the commute alone is enough to drive you to exhaustion. If the insurer wanted the jury to be disinterested and upset, mission accomplished. When the Plaintiff brought an unopposed motion to have the trial moved back to Brampton, the motion was denied!!!! The Defendant didn’t even oppose the motion and the Plaintiff’s request to have the trial moved back the jurisdiction where they started the case was rejected. The insanity of that proposition makes my blood boil.
  3. This was my favourite part of the case which was glossed over and totally minimized by the Judge:

On January 22, 2020, the Plaintiff was to continue his evidence in chief. Unfortunately, the Plaintiff collapsed in the presence of the jury, due to self-harm. The court sought submissions from the parties as to how to proceed. The Defendant brought a motion for a mistrial, which was opposed. The mistrial was granted…..

The Plaintiff shall pay to the Defendant the Defendant’s costs thrown away as a result of the mistrial, on a substantial indemnity basis, fixed in the sum of $33,588.03, inclusive of fees, disbursements and taxes, payable in any event of the cause.

Let’s first focus on the finding that the Plaintiff collapsed in the presence of the jury due to “self harm”. The Miriam Webster dictionary defines “self harm” as:

the act of purposely hurting oneself (as by cutting or burning the skin) as an emotional coping mechanism”

It is glossed over how the Plaintiff self harmed himself, and it is also not mentioned what happened after the self harm. Did the Plaintiff go to hospital? For how long? Were they admitted to the psych ward or was this some deliberate ruse by the Plaintiff to get his trial delayed? Should it not be important to this Judge to further investigate or elaborate on the self harm and further explore what doctors said about the act?

This is very troubling to me; as it should be for you because the Judge essentially penalized the self harm by awarding costs to the Defendant on a substantial indemnity basis for the mistrial on account of the self harm.

If the Plaintiff was suicidal to begin with, or had mental health issues which manifest itself in self harm when faced with pressure or adversity like in a Courtroom setting; THEN WHY ARE WE PENALIZING THIS PLAINTIFF FOR MANIFESTING HIS LEGITIMATE MENTAL HEALTH PROBLEMS!!!!!!

It’s most troubling for a Judge to make this sort of rash decision against a Plaintiff who is either:

a) obviously mentally ill

b) obviously suicidal

Before penalizing the Plaintiff with a mistrial and awarding substantial indemnity costs against him, why not ask for the records from the doctor or hospital from the visit following the self harm. Why not order a psych examination to comment on the issue. There was no showing of leniency, empathy or understanding on the part of this trial judge to the mental health of this Plaintiff. When our Judges aren’t showing any love to those with mental health issues, it does not set a very good example. We still have a long way to go on this front.

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