- Ontario recognizes two distinct legal paths to emotional distress damages: through a breach of contract claim, or through the independent tort of intentional infliction of mental suffering.
- Under Fidler v. Sun Life Assurance Co., 2006 SCC 30, mental distress damages for breach of contract are available where they are established on the evidence and were within the reasonable contemplation of the parties when the contract was made.
- You do not need to prove a separate wrongdoing beyond the breach itself to claim mental distress damages for breach of contract — the Fidler test does not require an "independent actionable wrong."
- The tort of intentional infliction of mental suffering requires proving flagrant or outrageous conduct, intended to cause harm (or with reckless disregard for it), that actually caused a visible and provable illness.
- Simply feeling upset, frustrated, or inconvenienced by a dispute — without more — generally does not support an emotional distress claim on its own.
- Awards for mental distress tend to be modest and evidence-driven, not automatic or large, even where a claim succeeds.
The Short Answer
Yes, you can sue for emotional distress in Ontario Small Claims Court — but not simply because a dispute upset you. Ontario law recognizes two distinct legal routes to emotional distress damages, each with its own specific test and evidentiary requirements. This guide explains both.
Two Legal Paths to Emotional Distress Damages
Ontario recognizes emotional distress damages through two separate legal frameworks:
- Mental distress damages flowing from a breach of contract
- The independent tort of intentional infliction of mental suffering
These are legally distinct, with different tests — understanding which one applies to your situation matters significantly.
Path 1: Mental Distress for Breach of Contract
The leading case is Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30, where the Supreme Court of Canada confirmed that mental distress damages for breach of contract are available where:
- The distress is established on the evidence, and
- It was within the reasonable contemplation of the parties at the time the contract was made
Importantly, the Supreme Court confirmed there is no requirement for an independent actionable wrong — mental distress damages can flow directly from the breach of contract itself, without needing to prove a separate tort on top of it.
An insurance company wrongfully denies a legitimate disability claim, despite the entire purpose of the policy being to provide financial and emotional security during a period of illness. Because peace of mind was clearly within the contemplation of both parties when the policy was purchased, a court may award damages for the mental distress caused by the wrongful denial, on top of the unpaid benefits themselves.
Path 2: Intentional Infliction of Mental Suffering
Separately, Ontario law recognizes an independent tort — a standalone civil wrong — for intentional infliction of mental suffering. This requires proving three elements:
- The conduct was flagrant or outrageous
- The conduct was calculated to produce harm, or done with reckless disregard for the likelihood of causing harm
- The conduct actually resulted in a visible and provable illness or psychological harm
This is a demanding legal test. Rude, unprofessional, or even genuinely hurtful conduct does not automatically meet the “flagrant or outrageous” standard, and a visible, provable illness — not just subjective upset — is required.
What You Actually Need to Prove
| Route | Key Elements to Prove |
|---|---|
| Contract-based (Fidler) | Genuine distress, established on the evidence; that peace of mind or security was within the parties' contemplation when contracting |
| Intentional infliction of mental suffering | Flagrant/outrageous conduct; intent or reckless disregard; a visible, provable resulting illness |
Realistic Award Amounts
Emotional distress awards are closely tied to the evidence presented and tend to be modest, not automatic or large — even the landmark Fidler case itself, decided by the Supreme Court with extensive evidence, resulted in an award in the tens of thousands, not an outsized figure. In Small Claims Court, subject to the $50,000 jurisdictional limit, awards for this kind of harm tend to be proportionately conservative and evidence-driven.
Common Scenarios
- Wrongful denial of insurance benefits central to the policyholder's security
- Deliberately harassing or abusive conduct by a landlord, contractor, or business connected to a dispute
- Contracts specifically intended to provide peace of mind (certain travel, wedding, or funeral service contracts, for example) that were badly breached
What Generally Won't Qualify
- Ordinary frustration or annoyance from a routine commercial dispute
- Distress without any medical, psychological, or other objective evidence to support it
- A contract with no connection to peace of mind or emotional security, where the breach caused only financial loss
Common Mistakes
Both legal routes require more than subjective distress — real evidence and a specific legal test must be met.
Without objective evidence, an emotional distress claim is difficult to substantiate, particularly for the intentional tort route.
Conflating the contract-based test with the intentional tort test — or vice versa — weakens the claim's framing and persuasiveness.
Overestimating what a mental distress claim is likely to yield can lead to unrealistic expectations about the overall case.
Considering a claim that includes emotional distress damages? Call our Toronto litigation lawyers at 416-274-2222 for a free consultation.
Frequently Asked Questions
Yes, in limited circumstances, through one of two legal routes: as damages flowing from a breach of contract, or as an independent claim for the tort of intentional infliction of mental suffering. Both require real evidence — simply being upset by a dispute is generally not enough on its own.
Under Fidler v. Sun Life Assurance Co. of Canada, 2006 SCC 30, mental distress damages for breach of contract are available where they are established on the evidence and were within the reasonable contemplation of the parties at the time the contract was made — for example, where the entire purpose of the contract was to provide peace of mind or protection from distress.
No. The Supreme Court in Fidler confirmed there is no requirement for an "independent actionable wrong" — mental distress damages can flow directly from the breach of contract itself, provided the Fidler test is met.
Contracts where peace of mind, security, or freedom from distress was a central purpose of the agreement — disability or other insurance contracts are the classic example, since the entire point of the contract is to provide security in the event of hardship.
It is a separate, independent tort requiring proof of three elements: conduct that was flagrant or outrageous, conduct calculated to produce harm (or done with reckless disregard for the likelihood of causing harm), and conduct that actually resulted in a visible and provable illness or psychological harm.
Generally, no. Ordinary frustration, inconvenience, or upset — without evidence meeting either the contract-based test or the elements of the intentional tort — typically does not support a standalone emotional distress claim.
Medical or counselling records, a documented history of symptoms, evidence connecting the distress directly to the specific breach or conduct at issue, and where relevant, evidence showing that the contract's purpose was specifically to protect against this kind of distress.
Awards tend to be modest and closely tied to the evidence presented, not automatic or large. Even in the landmark Fidler case itself — decided in a higher court with extensive evidence — the mental distress award was in the tens of thousands, not a runaway figure; Small Claims Court awards, subject to the $50,000 jurisdictional limit, tend to be proportionately conservative.
Yes, in appropriate cases — a mental distress claim is often pursued alongside a primary breach of contract or other claim, rather than as a completely standalone action, particularly where the underlying breach itself caused measurable distress.
Strongly recommended. Both legal routes have specific, fact-intensive tests that are easy to misapply, and presenting the right kind of evidence — particularly medical or psychological evidence — is often essential to success.