The Ontario Court of Appeal recently awarded $246,049.92 against employer of the year candidate, Applied Consumer & Clinical Evaluations Inc. In Strudwick v Applied Consumer & Clinical Evaluations Inc., the court found that the employer calculatedly tried to make a deaf employee’s workplace so intolerable that she would just quit. When she refused to quit, the employer terminated her, alleging cause.
Ms. Strudwick, who had worked for the employer for nearly 16 years, contracted a virus, which left her deaf. From that point forward, the employer made her life intolerable.
The Ontario Court of Appeal (“ONCA”) summarized the employer’s deplorable conduct as two-fold: (1) general cruel treatment; and (2) conduct related to accommodating her disability.
The cruel treatment involved:
- Purposely giving instructions in a manner that prevented Ms. Strudwick from lip reading
- Calling Ms. Strudwick stupid for not understanding those instructions
- Chastising Ms. Strudwick for not answering the phone
- Insisting she provide a doctor’s note stating the precise cause of her hearing loss (which doctors had not yet figured out) and then calling her “too cheap” to produce a doctor’s note when she could not
- Telling her that she should “just quit” and “go on disability.”
The ONCA also concluded that the employer refused to accommodate Ms. Strudwick’s disability in the following ways, as it felt these were “unnecessary”:
- Allowing an accommodation assessment
- Providing important information in print
- Allowing her to bring an assistance dog into the workplace
- Permission to use a special voice carry-over telephone (at her own expense)
- Installing a visual fire alarm (again, at her own expense) and assigning a person to notify her if the fire alarm is activated
- Allowing her to turn her desk around so she could see people approaching her
- Allowing her to use a vibrating or light-activated pager.
The employer’s conduct on termination was just as deplorable. Her manager confronted her in front of other employees about the “stunt” she pulled at work (it is not clear what she is alleged to have done) and then called her a “goddamned fool”. He then terminated her for insubordination and wilful misconduct, and provided her a document confirming her termination, a cheque for three months’ pay, and a release. When she refused to sign the release, the manager took the cheque back and marched her out of the office. Ms. Strudwick did not receive her outstanding pay until she involved the municipal labour authorities. She was unable to immediately secure employment insurance because of the employer’s allegations. She also developed an adjustment disorder, as well as mixed anxiety and depression as a result of the manner of termination.
Decision and damages
Despite being largely successful at the Ontario Superior Court (“ONSC”), Ms. Strudwick appealed the damages award to the ONCA. Unsurprisingly, the ONCA also found the employer’s conduct completely unacceptable, and increased her damages in the following ways:
- Notice period damages. The ONSC awarded Ms. Strudwick a 24-month notice period. That period was in part based on the Wallace v. United Grain Growers Ltd. decision from 1997, that bumped up the notice period because of bad faith conduct on termination (which the Supreme Court has said is not a thing). Ms. Strudwick appealed the damages award, requesting notice to the age of 65 (or 125 months), which is the age she anticipated retiring, based on her manner of dismissal and the employer’s litigation strategy. The ONCA noted that while there is no upper limit on notice periods, the 24-month notice period was reasonable in light of her age (56) and years of service (15 years and 8 months), and that damages until retirement is not the appropriate way to assess a notice period. The Court did acknowledge that the Wallace bump-up was not correct, but the employer did not cross-appeal the damages award so it did not remove the bump-up.
- Human rights damages. The ONSC awarded $20,000 in human rights damages. The ONCA held that this was too low, because the ONSC did not sufficiently consider the impact of the discrimination on Ms. Strudwick. The ONCA held that the conduct had a profound and prolonged impact on her and was designed to increase the difficulties she was experiencing in the workplace. As such, it doubled the award to $40,000.
- Intentional infliction of mental distress. The ONSC awarded Ms. Strudwick $18,984 to reimburse her for counseling sessions. Ms. Strudwick appealed the quantum, arguing that the ONSC failed to award damages for the injury itself, rather than just the cost of treatment. The ONCA agreed and increased the damages by $5,000 to address Ms. Strudwick’s pain and suffering. It also awarded an additional $11,310 in damages because there was evidence that her counseling would have been more effective and expensive had she used a sign language interpreter.
- Aggravated damages. The ONSC did not award any aggravated damages, citing a concern over double-compensation with other damages she had already been awarded. The ONCA instead awarded $70,000 in aggravated damages for what it called “extreme bad faith” conduct in the manner of dismissal. The ONCA further reduced this amount by the 4-month Wallace bump-up discussed above.
- Punitive damages. The ONSC awarded $15,000 in punitive damages for the employer’s insensitive, prolonged, and reprehensible conduct that was designed to force the employee to quit her job. The ONCA increased the award to $55,000, largely because it felt the ONSC over-emphasized the financial impact a punitive damages award would have on the employer and its ability to pay, when there was no evidence on the record about the company’s finances.
While this looks like a large win for the employee, the damages award still seems small, and is far less than what she was asking for on appeal (which exceeded $1,000,000). However, while it appeared that the ONCA might have wanted to award a higher damages award, it held that it could not for one reason: the employee did not ask for more than $240,000 in its Statement of Claim. Therefore, this case provides a stern warning to employers that courts are willing to punish bad behavior, likely in excess of the damages in this case.