Executive Summary: Key Legal and Evidentiary Issues

• Psilocybin, a prohibited Schedule III substance under the Controlled Drugs and Substances Act, was awarded as a future care cost despite requiring Health Canada authorization for lawful acquisition

• The trial judge's reasons contemplated conditional payment upon proof of authorization, but the entered order required payment without conditions

• Future care costs must be both medically justified and reasonable, with only lawfully incurred costs qualifying as reasonably incurred

• Expert evidence supporting the psilocybin claim was uncontroverted, yet the court found a disconnect between the judge's reasoning and his final order

• Negative contingencies regarding the plaintiff's likelihood of seeking or obtaining Health Canada authorization were not properly addressed in the award

• The appeal court determined the trial judge committed a palpable error by making an award that failed to satisfy his own prerequisite for reasonableness

The accident and its devastating impact

On May 1, 2018, Shelley Ann Roy-Noel was exiting a parked vehicle when a light truck driven by Mark Buckle rear-ended the parked vehicle. She was 39 years old at the time of the collision and 45 when the trial took place. Her injuries were extensive and life-altering, including pain in the left arm, neck, and head, tinnitus, dizziness, constant migraine headaches, and a condition described as "central sensitization syndrome" involving greater sensitivity to pain and diminished ability to cope with pain. She also suffered psychological injuries including a major depressive disorder, generalised anxiety disorder, post-traumatic stress disorder, and suicidal thoughts. She lost her employment and her home, because she could not afford to pay rent, and at the time of trial was being supported by family members in their homes. The trial judge noted that her conditions were "omnipresent, severe, and disabling, imposing emotional suffering, and destroying her previous vital and enjoyable lifestyle."

The trial and damages awarded

Ms. Roy-Noel sued and was awarded damages of approximately $1.428 million. Liability was not disputed. Her claim against Mr. Buckle was defended by the Insurance Corporation of British Columbia (ICBC). The trial took place to quantify Ms. Roy-Noel's claim for damages. Among the damages claimed was $594,022 for the cost of future care, of which the judge allowed capitalized future care costs totalling $367,916, less a 15% allowance to reflect contingencies. The specific issue on appeal concerned $35,158.55 awarded for psilocybin capsules ($33,321) and psilocybin assisted therapy ($8,042), after deduction of the 15% contingency allowance.

The psilocybin treatment controversy

Ms. Roy-Noel had been taking daily doses of a psilocybin product through a private, presumably unauthorised, supplier since her first dark spell of suicide ideation in late 2018. Before the collision, she had tried magic mushrooms a few times but was not a regular user. Afterwards, she found them effective in alleviating her migraines and dark thoughts and described them as critical for her ability to function. Her claim was supported by the evidence of an independent expert, Dr. Kryskow, whose evidence was uncontroverted. The trial judge described the evidence favouring the award as "compelling" and found psilocybin to be "literally … life-saving, in staving off her suicidal thoughts." However, psilocybin is a prohibited Schedule III substance under the Controlled Drugs and Substances Act, though it can be prescribed by a physician with special permission granted by Health Canada. The judge found that "there is no reason to think that a request made for treatment of the plaintiff would be rejected by Health Canada." He requested and obtained from Ms. Roy-Noel, through her counsel, an undertaking that if she is awarded this head of damage, she would only obtain psilocybin through legal and prescribed means through a physician.

The legal framework for future care costs

An award for the cost of future care is intended to compensate a plaintiff for costs to be incurred that are reasonably necessary to promote the plaintiff's health. These costs must be medically justified and reasonable. An award for the cost of future care is assessed once and for all at the time of trial. It is a matter of prediction based on evidence of what costs are likely to be required and incurred in the plaintiff's best interests. Courts evaluate hypothetical future events by determining whether the event is a real and substantial possibility, and if it is, by assessing the likelihood of the event and discounting it accordingly. Both parties agreed that only lawfully incurred costs can be considered as having been reasonably incurred.

The error identified by the Court of Appeal

The Court of Appeal found that the conditions contemplated in the trial judge's reasons—that ICBC need only pay Ms. Roy-Noel "if and when presented with written confirmation from a physician of their prescription for the psilocybin treatment obtained pursuant to Health Canada authorisation and all other federal requirements"—are not contained in or consistent with the entered order of the court. The order imposes on ICBC an unconditional obligation to pay the expense up front as a lump sum. The trial judge expressly found that psilocybin was a reasonably necessary expense only "if and as prescribed by a physician in compliance with Health Canada protocols," yet his order did not reflect this contingency. The judge made an award for claimed expenses that did not meet his own prerequisite for reasonableness, which the Court of Appeal found to be a palpable error fundamental to the granting of the award and its quantification. Ms. Roy-Noel accepts that the order had to be unconditional, and the judge erred in supposing in his reasons that the order could allow for the payment out of the amount awarded in stages over time and on conditions.

The appeal outcome and remittance

The Court of Appeal allowed ICBC's appeal and remitted the psilocybin claim to the trial judge for redetermination. The court rejected eliminating the psilocybin portion from the award entirely as unfair to Ms. Roy-Noel, because it is entirely possible that she will apply for and obtain Health Canada authorization or has already done so. She undertook to apply and the judge could see no reason she would not obtain authorization, if she applied. The Court of Appeal declined to make its own determination, noting the trial judge is in a better position to address this question because he saw and heard Ms. Roy-Noel give evidence over the course of several days, and will have a better sense of her inclinations and motivations than the appellate court could acquire from a review of the transcript. The award for the cost of future care was reduced by $35,158.55 subject to further consideration of Ms. Roy-Noel's psilocybin claim, with further consideration remitted to the trial judge for determination on the basis of the evidence at trial and such further evidence as he may permit the parties to adduce. It has been 21 months since Ms. Roy-Noel testified at trial, and what has happened or has not happened since April 2024 may shed light on the question. The exact award for psilocybin remains pending the trial judge's redetermination.