The cost of bad behaviour

4 minute read
26 February 2016


The 2008 Supreme Court of Canada decision in Keays v. Honda Canada Inc. stands for the proposition that the breach of an Employment Agreement will inevitably cause some mental distress and such distress and hurt feelings are not compensable.

That having been said, courts and tribunals appear increasingly more willing to compensate employees who have been subjected to unacceptable behaviour at the hands of their employers.

Whereas breaches of the Ontario Human Rights Code historically resulted in rather nominal damages, more recently these awards have been on the rise to the point that a $20,000 assessment is not at all unusual (see Bray v. Canadian College of Massage and Hydrotherapy and Partridge v. Botany Dental Corp.). 

In contrast, where the discrimination also includes sexual assault, there are examples of damages between $50,000 and $300,000 (see OPT and NPT v. Prestev Foods Ltd. and Silvera v.Olympia Jewellery Corporation). 

An important 2015 decision involving a six figure damage award did not involve a sexual assault but did contain a variety of damages headings and a particularly egregious fact situation (Strudwick v. Applied Consumer & Clinical Evaluations Inc.).  On August 7, 2015 Justice Dow of the Ontario Superior Court of Justice dealt with an ex parte motion for default judgment after the Defendant was unsuccessful in  setting aside having been noted in default.  The Plaintiff had 15.67 years of service performing data entry and instructing recruiting staff on a part time basis.  At the time of her dismissal she was 56 years of age earning $12.85 per hour and approximately $22,000 per annum.

Although her performance evaluations exceeded expectations, when Ms. Strudwick became deaf in the fall of 2010 the Defendant’s treatment of her became shameful.

A litany of reasonable requests for accommodation with no costs to the employer were refused by the employee’s supervisor and general manager including things as simple as having important instructions and information provided to her in writing.
Ms. Strudwick offered to purchase TTY equipment and a visual fire alarm without success.  She was not permitted to reverse the direction of her desk so as to see people entering her office.

Additionally she was subjected to unconscionable behaviour and ultimately the termination of her employment for alleged insubordination.  While initially she was offered three months pay, when she declined to sign a release she was instructed to leave the premises and received no payment.  Thereafter the Defendant refused to pay the Plaintiff for outstanding wages and completed a Record of Employment that delayed the Plaintiff’s entitlement to Employment Insurance.

The result of this behaviour was that Ms. Strudwick suffered an adjustment disorder requiring treatment by not only her family physician but also a psychiatrist at an estimated cost of approximately $19,000.

While the court would have ordinarily awarded damages for reasonable notice representing a period of 20 months, this was increased to 24 months by reason of the Defendant’s conduct which interfered with the employee’s chances of finding alternate employment.  In addition to an amount for collateral benefits, the court awarded the Plaintiff $20,000 for a breach of the Ontario Human Rights Code and injuries to her dignity, feelings and self-respect.

The court canvassed the requirements for the tort of intentional infliction of mental suffering and awarded the Plaintiff the anticipated costs of her medical treatments associated with her adjustment disorder but declined to make a further award for aggravated damages to avoid double-recovery given the balance of the decision.

Justice Dow then reviewed the 11 points set out by the Supreme Court of Canada in Whiten v. Pilot Insurance Co. before awarding a further $15,000 in punitive damages.  The total award came to $109,940.97 plus prejudgment interest and costs of $40,000.
It can only be hoped that awards such as these will help to shape healthier workplaces in the future.

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