Availability of Tort Claims in Employment Actions Restricted by Ontario Court of Appeal Ruling

July 16, 2010 | Carol S. VandenHoek

The Ontario Court of Appeal has ruled, in a decision dated May 28, 2010, that an employer cannot be sued in tort for negligent infliction of mental distress.  The ruling reversed the 2008 trial decision of Ontario Superior Court Justice Catherine D. Aitken, and significantly reduced a large damage award to the plaintiff, Maria Piresferreira.  In so doing, the Court has delivered a clear message regarding the limited availability of tort claims by employees against their employer.

Torts are claims by a party because of a wrong or injury not caused by a breach of contract.  A successful tort claim requires a legal duty owed by a plaintiff to a defendant, a breach of that duty and damages flowing from the breach. The Court of Appeal held that the tort of negligent infliction of mental distress is not available in employment law claims.  The Court also overturned the trial judge’s determination that the employer in this case was liable for intentional infliction of mental distress, holding that the plaintiff employee had failed to meet the rigorous standard required to establish, on the facts, intentional infliction of mental distress on the part of the employer. 

In Piresferreira v. Ayotte, Ms. Piresferreira sued her former manager and former employer, Bell Mobility, for constructive dismissal and sought damages for battery and intentional and negligent infliction of mental distress.  Her claims included loss of income during the notice period, future loss of income and damages for the torts of battery and negligent and intentional infliction of mental distress.  The employee was 60 years of age, had approximately ten years of service and had been employed in a sales capacity. 

The trial judge awarded the plaintiff significant damages of just over $500,000 plus a costs award of $225,000.  This included an award of general damages of $45,000 for assault, battery, negligent and intentional infliction of emotional distress, mental suffering and psycho-traumatic disability.   The employee went on a stress leave and did not return to work.  The employer was held vicariously liable for the actions of the manager.  The employee claimed that she experienced severe mental suffering because of her manager’s misconduct and was unable to work.  The trial judge found that the employer was liable for the tort of battery (the physical assault), and the torts of intentional and negligent infliction of mental suffering.  Ms. Piresferreira was also awarded general damages of $450,000 for loss of income during the notice period and for loss of income up to age 65 due to an inability to work arising out of her mistreatment. 

The appeal court significantly reduced the damages award.  They maintained an award for the tort of battery (the physical assault) for $15,000 for which Bell Mobility and the supervisor were jointly liable.  They provided a twelve month notice period and an additional $45,000 for mental suffering due to the mental distress suffered by the employee in the manner of her constructive dismissal from Bell Mobility.  All other damages awarded by the trial judge were set aside. 

Of note, the court stated that the new cause of action of negligent infliction of mental distress is:

“[U]nnecessary because if the employees are sufficiently aggrieved, they can claim constructive dismissal.  It is undesirable because it would be a considerable intrusion by the courts into the workplace, it has real potential to constrain efforts to achieve increased efficiencies, and the postulated duty of care is so general and broad it could apply indeterminately.”

This case is noteworthy as it is the first appeal level ruling on whether a cause of action should be recognized to lie in tort against an employer for negligent infliction of mental suffering in the workplace.  The panel soundly rejected the availability of this tort in employer-employee relations, while pointing to other methods of compensation available to employees in cases of employer mistreatment or misconduct.  The decision of the Supreme Court of Canada in Honda v. Keays [2008] 2 S.C.R. 362 emphasized the contractual nature of the employer-employee relationship and that the rights of the employee flow from this contract.  In Piresferreira, the Ontario Court of Appeal recognizes in its decision that Honda v. Keays permits contractual damages for mental suffering if the employee suffers mistreatment in the course of the termination of employment.  As well, the tort of intentional infliction of mental suffering remains available to plaintiffs who can satisfy the rigorous standard of proof. 

This case is important and worth watching as it is anticipated that the employee will seek leave to appeal the decision of Ontario’s highest court to the Supreme Court of Canada. 

Case citation:  Piresferreira v. Ayotte, [2010] O.J. No. 2224 (Ont. C.A.).


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