This was the preliminary question for the court in a recent Ontario decision called Leung v. Shanks. The court was asked to do a threshold “screening” of the potential legal viability of a woman’s lawsuit against the mistress of her common-law husband, and against the fertility clinic where the mistress worked, and where the wife had been receiving treatments for several years.
The husband and wife had begun seeing each other 2006, and moved into together as a common-law couple in 2007. That same year, they started attending at a fertility clinic where a woman named Shanks worked as a nurse. At some point during the three years that the couple attended for fertility treatments, the husband became intimately involved with Shanks, and they began a secret affair.
Eventually, the wife finally became pregnant; the next day the husband disclosed the ongoing affair. The wife ended up having a miscarriage.
She sued Shanks, the clinic and the treating doctor for a number of things. In connection with Shanks specifically, the woman claimed that Shanks:
• took advantage of the trust inherent in the nurse-patient scenario, in order to advance an intimate relationship with the husband, to the detriment and harm of the wife;
• misused the wife’s personal information, to the point where there was an invasion of her privacy;
• engaged in a “conspiracy to injure” the wife, given that she and the husband engaged in a secret affair, which continued while the wife was receiving fertility treatments;
• intentionally or negligently inflicted mental distress on the wife;
• breached her duty of care to the wife, which she owed as a professional nurse, by engaging in sexual relations with the husband.
The wife also claimed general damages for breach of contract, breach of privacy, intrusion upon seclusion, and pain and suffering as a result of Shank’s conduct, and also sued the clinic and the supervising fertility doctor for various claims (given that they were Shanks’ employer, and therefore vicariously liable for her actions).
The parties appeared before the court on a motion to determine whether the woman’s 49-paragraph claim should be struck out, for being “scandalous, frivolous or vexatious”, or otherwise an abuse of the court’s process. (And it should be noted that this was not a trial, nor even a motion for summary judgment. Rather, it was a preliminary hearing to determine whether it was “plain and obvious” that the woman’s pleading disclosed no viable cause of action).
The court allowed the wife’s claim to proceed. Although it was true that Canadian courts have consistently refused to award compensation to a spouse for emotional hardship arising from the other spouse’s decision to end the relationship (whether or not it involves an extra-marital affair), in this case the court found that a trial court would be in the best position to determine if Shanks’ conduct rose to the level of “extreme, flagrant, or outrageous”, whether it was intended to produce harm to the woman, and whether she intended the consequences. The court said:
While the pleading specifically alleges that the traumatic break-up of her relationship with Stuart resulted in the deterioration of the Plaintiff’s mental/ physical condition and ultimate miscarriage, the consequences resulting out of the entirety of acts and events pleaded are sufficiently close in time, and sufficiently tied to the parties involved, to support that element of a reasonable cause of action in the tort of intentional infliction of mental distress.
The court allowed the matter to go forward to the next stage.
For the full text of the decision, see:
Leung v. Shanks, 2013 ONSC 4943
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