In a recently decided case, Piresferreira v. Ayotte, the Ontario Court of Appeal has followed the trend set in 2008 by the Supreme Court of Canada in Honda Canada Inc. v. Keays of limiting employer obligations. In this case, the Appeal Court concluded that the tort of negligent infliction of mental suffering is not available in the employment context. However, a 2006 Supreme Court of British Columbia case, Sulz v. Attorney General et al., came to a different conclusion, rendering the law in this area uncertain.
The background to the Ontario case is instructive. The plaintiff, Marta Piresferreira, had worked for Bell Mobility as an account manager for seven years, generally receiving strong performance evaluations until 2004 when her review indicated she needed to improve. On May 12, 2005, her supervisor publicly berated and physically pushed her. Ms. Piresferreira then developed major depression and was unable to work.
At trial, the Ontario Superior Court found that Bell Mobility and the supervisor owed Ms. Piresferreira a duty of care to ensure she could work in a safe and harassment-free environment as the company’s Code of Business Conduct directed. The trial court found that the supervisor had breached this duty and Bell Mobility was vicariously liable for his breach. The court thus concluded that the tort of negligent infliction of mental suffering had been established.
For this tort, as well as battery and intentional infliction of mental distress, the trial court awarded her $50,000 for general damages and $500,924 for loss of income to retirement at age of 65 with a 10-per-cent contingency reduction.
The Appeal Court overturned the trial court’s decision, significantly reducing the damages previously awarded to Ms. Piresferreira. After undertaking a full duty-of-care analysis, the Appeal Court concluded that the tort of negligent inflict ion of mental suffering is not available in the employment context on the basis that a general duty to shield an employee from acts of violence and harassment in the workplace is an expansive duty better created by legislation.
Additionally, the Appeal Court found that damages for employers’ tortious behaviour are already available to employees through wrongful dismissal claims and compensation for mental distress under the framework provided by the Supreme Court of Canada in Honda.
In British Columbia, by contrast, case law supports the existence of a tort of negligent infliction of mental distress in the employment context. In the 2006 decision, Sulz v. Attorney General et al., the British Columbia Supreme Court found that the defendant, an RCMP staff sergeant, owed the plaintiff, a female Mountie under his supervision, a duty to ensure she could work in an harassment-free environment. He was found to have breached this duty by his behaviour towards the plaintiff who was awarded $950,000 in damages for past and future wage loss as well as general damages.
As the trial court did in Piresferreira, the B.C. Court recognized the employer’s anti-harassment policies in finding that the defendants owed the plaintiff a duty to ensure the workplace was free from harassment. Sulz was appealed to the British Columbia Court of Appeal and upheld but the Court was not asked to consider the tort of negligent infliction of mental distress and, accordingly, did not comment on it. It’s noteworthy that neither the Piresferreira trial judge nor the Ontario Court of Appeal referred to Sulz in their judgments.
Following the successful Ontario appeal in Piresferreira, it’s uncertain if B.C. courts will follow Sulz. The issue may be resolved by the Supreme Court of Canada if leave to appeal is sought by Ms. Piresferreira and granted. Interestingly, Ontario recently enacted legislation that makes employers responsible for workplace violence and harassment. A failure to comply with the legislation is an offence that could result in a maximum fine of $25,000 (and/or 12 months’ imprisonment) for individual employers and $500,000 for corporate employers. No similar legislation exists in B.C.