May 1, 2010 By: Christopher C. Rootham
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The Court of Appeal recently decreased a large claim won by an employee who was constructively dismissed and suffered from posttraumatic stress disorder as a result of her abusive manager. The employee was an account manager at Bell Mobility in Ottawa. In 2005, she suffered from increasingly strong verbal abuse from her manager. Her manager then struck her in 2005 and, when the employee pressed for an apology, informed her that he was filling out a performance improvement plan for her. While Bell Mobility investigated this incident and reprimanded her manager, it never informed the employee of this and collaborated with her manager in imposing a performance improvement plan. The employee did not return to work and eventually claimed constructive dismissal.

The trial judge awarded the employee over $500,000 in damages. She concluded that Bell Mobility was liable for the torts of negligent infliction of mental suffering, intentional infliction of mental suffering, and battery. She concluded that the employee could never work again because of her disability caused by her manager and Bell Mobility, and awarded both general damages (of $50,000) and loss of income until age-65 ($500,924) less a 10% contingency for the possibility she would not have worked until age-65. The trial judge would have awarded damages for constructive dismissal based upon a 12-month notice period ($87,855) and bad faith in the manner of dismissal ($45,000), but did not do so on the grounds that they would have duplicated the tort damages.

The Court of Appeal overturned the damage award based upon the tort claims. First, the Court of Appeal concluded that the tort of negligent infliction of mental suffering is not available in the employment context. The Court of Appeal concluded that there should not be a duty of care between an employer and employee with respect to that tort for "policy reasons": it would duplicate the obligation of good faith and fair dealing and claims for constructive dismissal and is therefore unnecessary. The Court of Appeal based its decision in part on its conclusion that “no Canadian appellate court has recognized a free standing cause of action in tort against an employer for negligent infliction of mental suffering." The Court of Appeal did not refer to Sulz v. Minister of Public Safety and Solicitor General, 2006 BCCA 582 where the British Columbia Court of Appeal upheld a damage award of over $900,000 based upon such a tort1.

Second, the Court of Appeal concluded that the trial judge erred in finding Bell Mobility had committed the intentional tort. That tort has two elements: (i) flagrant and outrageous conduct and (ii) a desire to produce the consequences that follow or knowledge that the consequences are substantially certain to follow. The Court of Appeal concluded that the trial judge erred by applying a standard of "reckless disregard" to the second element of the test: the tort requires a subjective awareness that the harm that resulted is substantially certain to follow, not an objective element such as "reckless disregard."

The Court of Appeal agreed with the trial judge that the manager committed the tort of battery. However, the Court of Appeal concluded that the employee's disability was not caused by the battery, but was instead caused by a number of other events that were not dependent upon the battery. The Court of Appeal therefore awarded $15,000 in general damages for the battery.

Finally, the Court of Appeal replaced the tort damages with the damages for constructive dismissal. The Court of Appeal agreed with the trial judge that Bell Mobility acted in bad faith, and that the award of $45,000 for bad faith had "a solid foundation." Bell Mobility argued that the employee did not properly mitigate her damages: since she was so disabled she was unable to ever work again, the Court of Appeal obviously dismissed this argument. Therefore, the employee ended up with damages for constructive dismissal of $87,855, damages for bad faith of $45,000, and damages for battery of $15,000.

The employee's lawyer has stated that he will be seeking leave to appeal to the Supreme Court of Canada in this matter.


[1]Admittedly, the employer conceded negligence in the BC Court of Appeal so that court did not address the issue directly.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2017 Nelligan O’Brien Payne LLP.

Service: Employment Law