“What remains is Cindy’s claim of intentional infliction of mental distress. In Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474 (C.A.), the Court of Appeal for Ontario confirmed the existence of the tort of the intentional infliction of mental suffering, and summarized its elements as follows, at para. 48: “(1) flagrant or outrageous conduct; (2) calculated to produce harm; and (3) resulting in a visible and provable illness” (emphasis added).
Cindy testified that Carlo subjected her to verbal abuse throughout their relationship and that it only seemed to worsen in later years. She testified that he called her derogatory names and that he “cut her up,” especially in front of other people. Although Carlo testified that the couple had arguments, he denied verbally abusing Cindy during their marriage.
Cindy testified that, because of the abuse she endured during the marriage, in combination with an incident in August 2015 involving Carlo and her best friend’s niece, she suffers from depression and post-traumatic stress disorder. She testified that she had undergone counselling since separation and produced invoices to prove this and demonstrate its cost. During submissions, Cindy abandoned her claim for $100,000 in damages. Instead, she now only seeks a monetary award to cover her costs for counselling.
Cindy’s evidence that she suffered from depression and post-traumatic stress disorder appears based on what at least one of her therapists told her. None of her therapists testified at trial, nor was there any evidence regarding their qualifications. During cross-examination, Cindy acknowledged that no medical doctor had diagnosed her with either depression or post-traumatic stress disorder or prescribed medication for the treatment of these conditions.
The absence of medical expert evidence is not necessarily fatal to a claim of intentional infliction of mental suffering: Prinzo, at para. 46. Nevertheless, to succeed, Cindy must establish that she suffered more than the type of mental distress that many spouses experience at the breakdown of their marriage; she must establish a visible and provable illness: Merrifield v. Canada (Attorney General), 2019 ONCA 205, at para. 60. In my view, on this record, she has failed to prove this on a balance of probabilities.”