Friday, May 23, 2008

Sure make our day sue The Culligan Man!



Tansi/Good Day Readers:
We often think of the United States as being a particlarly litigious society - for example, 13 different courts have entertained cases involving spilled hot coffee one actually succeeding. Stella Liebeck a 79-year-old was awarded $2.9 million by a New Mexico jury because McDonalds dared sell her a 170 degree cup of java. However, in Canada we're not without our no brainers. In the case of the second example (below) while a damage award was certainly justified $2.1 million?
Wonder if we could get say $50 million from the MMF, its Plaintiffs and their attorney Murray Trachtenberg if we successfully countered sued for malicious prosecution in their frivolous, vexatious, spurious defamation lawsuit against www.CyberSmokeSignals.com?
Sincerely,
Clare L. Pieuk
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Supreme Court Overturns Damages For Fly In Bottled Water - Water Company Couldn't Have Known Man Would Become Anxious, Depressed, Judges Rule
By Kirk Makin, Justice Reporter
Globe and Mail
May 23, 2008
Page A5

The Supreme Court of Canada has swatted down a $341,775 damages award to a haridresser from Windsor, Ontario who became depressed and phobic after finding a dead fly in his bottled water.
By a 9-0 judgment yesterday, the court said Culligan of Canada Ltd. cannot be found liable for psychological damages suffered by Waddah (Martin) Mustapha because it could not have reasonably forseen his extreme reaction to finding the fly.
"Mustapha failed to show that it was foreseeable that a person of ordinary fortitute would suffer serious injury from seeing the flies in the bottle of water he was about to install," Chief Justice Beverley McLachlin wrote for the court.
To succeed, she said, Mr. Mustapha would have had to show that Culligan knew he was particularly vulnerable to the sort of stressed experience he endured.
"In this case, however, there was no evidence to support a finding that Culligan knew of Mr. Mustapha's particular sensibilities," the court said. "Unusual or extreme reactions to events caused by negligence are imaginable - but not reasonably foreseeable."
A Lebanese immigrant, Mr. Mustapha is married with two daughters. He co-owns a successful hairstyling business with his wife. his lawyer Paul Pape, said yesterday that Mr. Mustapha, 47, was philosophical when he lost the case - even though he faces paying legal costs for both sides that could reach $500,000.
"The problem with this case was that the facts were seen as silly and risible," Mr Pape said. "Mr. Mustapha stood up to be counted, and he got slapped down. The real problem was that each judge would have had to go back to his or her wife and say: 'I just awarded $300,000 to a guy who saw a fly in his water bottle.' "
Mr Mustapha installed Culligan water dispensers at his business and at his home in 1986 and his family began to drink nothing but the company's bottled water.
Ruling in favour of his lawsuit in 2005, Mr. Justice John Brockenshire of the Ontario Superior Court found that Mr. Mustapha had become edgy, argumentative and depressed. He couldn't sleep, had regular nightmares and refused to even drink coffee because it contained water.
"He pictures flies walking on animal feces or rotten food and then being in his supposedly pure water," Judge Brockenshire said. "He has been constipated, is bothered by revolting mental images of flies on feces, etc., can no longer take long and enjoyable showers and instead, after lengthy treatment can only take perfunctory showers with his head down so the water doesn not strike his face."
Mr. Pape said yesterday that what really unsettled his client was not so much the sight of the dead fly on November 21, 2001, but a feeling that he and his family may have unwittingly consumed any number of insect parts since 1986.
Whether or not his reaction was typical of what one might expect, Mr. Pape said, Culligan ought to have been found liable.
However, Chief Justice McLachlin faulted Judge Brockenshire for considering Mr. Mustapha's subjective response to his discovery - rather than considering objectively what a person with average sensibilities might have felt.
She also attempted to set some guidelines for how damage arising from psychiatric harm should be assessed in future. "Psychological disturbance that rises to the level of personal injury must be distinguished from psychological upset," she said." Personal injury at law connotes serious trauma or illness.
"I would not purport to define compensable injury exhaustively, except to say that it must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly accept," Chief Justice McLachlin said.
Mr. Pape said it was gratifying that the court rejected any suggestion that his client had been a malingerer. Indeed, Chief Justice McLachlin noted in her ruling that Mr. Mustapha suffered from "a major depressive disorder with associated phobia and anxiety."
"This psychiatric illness was debilitating and had a significant impact on his life; it qualifies as a personal injury at law," she said. "It follows that Mr. Mustapha has established that he sustained damage."
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Court Upholds $2.1-Million Award To Beer Store Worker
By Kirk Makin, Justice Reporter
The Globe and Mail
May 23, 2008
Page A5
A $2.1-million jury award to a Brewer's Retail Inc. employee who was falsely accused of pilfering $160 was richly deserved in light of the company's 13-year" charade of duplicity and deception," the Ontario Court of Appeal ruled yesterday.
It said that Douglas McNeil was wrongly prosecuted for theft, based on surveillance videotapes the company supplied to police, while suppressing other videotape segments that would have exonerated him.
"The aggravated and punitive damages awarded by the jury reflect the jury's sense of outrage at BRI's conduct and the enormity of the harm it concluded McNeil had suffered," Madam Justice Karen Weiler said.
"By its verdict, it is apparent that the jury viewed BRI as a calculating and insensitive company that was prepared for its own purposes, to see an innocent man convicted of a crime it knew he did not commit."
The jury award is one of the largest ever rendered in a malicious prosecution lawsuit. It was also a particularly flagrant case of corporate wrongdoing to an innocent employee, she said.
"Shocked and devastated by his arrest, proclaimed publicly as a common thief, terminated from his employment, forced to go on unemployment insurance, forced to sell the family home and move to an apartment, forced to endure the anguish, stress and uncertainty of a thirteeen-year ordeal - these are but some of the consequences McNeil was exposed to by reason of BRI's callous and malicious conduct, " Judge Weiler said.
Brewer's Retail Inc. is a brewer-owned company in Ontario more commonly known as the Beer Store.
Kirk Stevens, a lawyer for Mr. McNeil, said in an interview yesterday that his client had a perfectly legitimate explanantion for removing money from the till.
A relative had asked him to change $140 in U.S. currency into Canadian dollars, Mr. Stevens said. He said that a portion of videotape police were not given depicted him doing precisely that.
In a second episode, Mr. McNeil could be seen removing two $10-bills and two loonies from the till, which he then split with a co-worker.
The exculpatory portion of the tape showed him taking $22 from his pocket and putting it into the till.
Mr. Stevens said yesterday that, at one point, a police investigator asked the company whether there was any exculpatory videotape, but it was not provided to him.
"The facts here confirm that the police and the Crown relied wholly on BRI, which actively and deliberately misled them," Judge Weiler remarked.
In a 1994 memo, company officials expressed concerns about the quality of evidence it had given police. The memo indicated officials were reluctant to come clean about the problem they had created because it could result in "long-lasting damage to [its] credibility."
Judge Weiler noted that part of the jury award was for Mr. McNeil's wife, Terry, who "saw her husband transformed into a man who was 'eaten up inside.'

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