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Monday Morning Case Bites for March 22, 2021

Last Week’s Court Rulings from the Alberta Court of Queen’s Bench, Court of Appeal and SCC.

Edited by Tony Slemko Q.C. & Steven Graham

Abdulhak v Fairmont Hotels Inc, 2021 ABPC 92
Occupier’s Liability | Negligence | Mental Suffering

The Provincial Court awarded the Plaintiff damages at trial for physical and mental suffering as a result of being bitten by bed bugs at the Defendant’s hotel.  

In a lengthy decision, the Court weighed the evidence of the Plaintiff against the evidence of the Defendant and found on a balance of probabilities that the Plaintiff was bitten by bedbugs, despite the Defendant’s evidence that testing of the Plaintiff’s room found no evidence of bed bugs. 

[61]           While I have considered the results of the CLL’s bed bug inspection and the assertion that prior and subsequent guests did not complain about bed bugs, that evidence has to be weighed against the following: 

  • Omar’s discovery of spots on May 5 and 6, 2019 after sleeping in one of the CLL’s beds;
  • Omar’s symptoms being consistent with those ascribed to bed bug bites by Dr. Grewal;
  • Dr. Pathan’s observations on examination being consistent with symptomatic bed bug bites as described by Dr. Grewal; and
  • Dr. Pathan’s opinion that Omar’s folliculitis was likely caused by bed bugs.

[62]           In my view, Omar has established that it is more probable than not that the spots that he discovered after sleeping in the CLL’s hotel room were bed bug bites.  I find, on a balance of probabilities, that Omar was bitten by bed bugs while staying at the CLL. 

The Court then found that the Defendant breached its duty of care owed to the Plaintiff under the Occupier’s Liability Act. There was sufficient evidence that exposure to bedbugs was a reasonably foreseeable risk. After weighing the evidence, the Court found there was no evidence that the employee cleaning the Plaintiffs’ room had been trained in bed bug procedures or recognition, and did not inspect the room for bed bug activity while it was being cleaned.  

[125]      Based on the foregoing evidence, I find that the CLL breached the standard of care by failing to provide appropriate training to its employees, and in particular, to the room attendant who cleaned Omar’s room before his arrival, with respect to both bed bug identification, and with respect to the signs of bed bug activity.  I further find that the CLL breached the standard of care by failing to provide appropriate instructions to its employees, and in particular, to the room attendant who cleaned Omar’s room before his arrival, with respect to the signs of bed bug activity.  In my view, the CLL’s failure to properly train and instruct its employees was a breach of the standard of care.  The CLL’s conduct created an unreasonable risk of harm, and was negligent.[59] 

The Plaintiff suffered physical discomfort from the bed bug bites, which resolved over time with medication. Relying on the Supreme Court decision of Saadati v Moorehead (2017 SCC 28), the Court determined that the Plaintiff also suffered psychological injuries related to the bug bites:  

[133]      Saadati confirmed that: 

“Canadian negligence law recognizes that a duty exists at common law to take reasonable care to avoid causing foreseeable mental injury, and that this cause of action protects a right to be free from negligent interference with one’s mental health.  That right is grounded in the simple truth that a person’s mental health – like a person’s physical integrity or property, injury to which is also compensable in negligence law – is an essential means by which that person chooses to live life and pursue goals.  And, where mental injury is negligently inflicted, a person’s autonomy to make those choices is undeniably impaired, sometimes to an even greater degree than the impairment which follows a serious physical injury…”[69] 

[134]      Without repeating my previous findings, the evidence before me suggested that the gravity of harm from bed bug activity is very serious, and the CLL linked guest health, safety and wellness to its Bed Bug SOP, leading to an inference that bed bugs are detrimental to health, safety and wellness.  Bed bugs feed off blood, and bed bug activity can result in blood spotting, bed bug feces or droppings, bed bug molts, and live or dead bugs being present in an infested room.  Guests sleep on the beds where bed bug activity may be present.  There is, as already discussed, a public health aspect to bed bug activity. 

[135]      This situation, in my view, is very different from that in Mustapha where the plaintiff had a “highly unusual” and “very individual” reaction to seeing flies in a water bottle[70].  In Mustapha, the trial judge applied a subjective standard relying on the plaintiff’s “previous history and particular circumstances”[71], and that was found to be an error. 

[136]      Dr. Grewal’s report sets out that Omar was “a fully functional individual engaged in normal work, social and leisure activities”, and that he had no “medical or psychological issues prior to the incident, and was leading what appears to be a healthy and productive life”.  There was no evidence suggesting that Omar’s reaction was “highly individual” or “highly unusual”, or that Omar had “particular circumstances” analogous to those canvassed in Mustapha.  I find that Omar was “a person of ordinary fortitude” before this incident.  

[137]      Based on the evidence before me, I find that it was reasonably foreseeable that “a person of ordinary fortitude” would have suffered psychological injury from learning that he had slept in a bed in a hotel room with bed bugs, and from learning that he had been bitten by bed bugs.  I find that Omar has shown that the damage sustained was legally caused by the CLL’s negligence, and that the damage suffered is not too remote to be compensable. 

 

[183]      Omar estimated that his psychological symptoms resolved approximately 3 to 4 months after his treatment ended.  I accept Omar’s evidence with respect to his psychological symptoms and when they resolved.  Omar, as noted previously, was a credible and forthright witness, and Omar’s evidence is corroborated by the medical evidence tendered at trial. 

[184]      When adjudicating claims of mental injury, the focus should be on the claimant’s symptoms and their effects.[83]   Mental injury is not proven by “mere psychological upset”[84].  Claimants must show a “serious and prolonged” disturbance beyond “ordinary annoyances, anxieties and fears”[85].  I find that Omar has established that his psychological injuries disrupted his ability to work, his social relationships, his routine activities and his sense of well-being in terms of his confidence and self-esteem.  I find that Omar’s symptoms and their effects “transcended ordinary emotional upset or distress”[86]. 

 On top of general damages, the Plaintiff was awarded special damages for loss of income and out of pocket treatment.