The Price of God: Understanding Reason and Religion in the Duty to Mitigate

• Author: Emma Compeau
• Position: Currently completing her JD at Western University
• Pages: 89-108

APPEAL VOLUME 25

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89

ARTICLE

THE PRICE OF GOD: UNDERSTANDING

REASON AND RELIGION IN THE DUTY

TOMITIGATE

Emma Compeau *

CITED: (2020) 25 Appeal 89

ABSTRACT

Tortfeasors have a responsibility to ta ke their victim a s they nd them, and vict ims of

tort have a duty to mitigate their d amages. Nestled between t hese two legal pr inciples is

a situation where a victim of tort ref uses medical treatment following injur y on the basis

of religious conviction. is pap er addresses and predicts possible legal outcomes i n this

undetermined area of Ca nadian lega l jurisprudence. is paper a sks to what extent the

thin skull pr inciple in tort embraces a plainti ’s religiously motivated deci sion to refuse

medical treat ment following injury. Ultimately, it is more likely than not thatthe religious

thin skull w ill be supported by Cana dian court s. is is necessa ry due to Canada’s

commit ment to Charterva lues and the real ities of living in a multicu ltural societ y that

values both freedom of relig ion and equality u nder the law.However, while it is likely

that religious ref usal of medica l treatment will be t reated as a religious t hin skull rat her

than a fai lure of the duty to mitigate, thi s would likely be limited to c ases where the

refusal fa lls within foreseeable religious requ irements that would necessarily ex ist within

a multicultural society.

* Emma Compeau is currently comple ting her JD at Western University. Emma is ac tively involved

with Community Legal Se rvices at Western University and w as the head supervisor of the Family

Law Team in 2019. Emma has been published in the Ontario Family Law Rep orts and was a

contributor in updating the E- Discovery chapter in Niman's Evidence in Family Law.

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APPEAL VOLUME 25

TABLE OF CONTENTS

INTRODUCTION..................................................91

I. PRINCIPLES OF DAMAGES .....................................92

II. THE THIN SKULL PRINCIPLE ..................................92

III. THE DUTY TO MITIGATE ......................................94

IV. RELIGION AND THE REFUSAL OF MEDICAL TREATMENT:

ARGUMENTS FOR AND AGAINST THE RELIGIOUS THIN SKULL ..95

V. RELIGION AS A BAR TO CAPACITY ..............................98

VI. THE CHARTER AS AN ADVOCATE FOR THE RELIGIOUS

THIN SKULL .................................................100

VII. RECONCILING PUBLIC VALUES AND PRIVATE LAW .............102

VIII. LOWER COURTS ON RELIGION AND MITIGATING DAMAGES ...104

IX. RELIGIOUS REFUSAL OF MEDICAL TREATMENT

FOR CHILDREN..............................................105

CONCLUSION: THE RELIGIOUS THIN SKULL, CANADIAN

MULTICULTURALISM, AND THE REASONABLE RELIGIOUS PERSON..107