Determining that abusive treatment by a supervisor had caused post-traumatic stress and long-term depression that precluded a return to any kind of employment and that the employer was vicariously liable for everything that occurred, an Ontario judge awarded more than $500,000 damages jointly against the supervisor and the employer for intentional and negligent infliction of emotional distress, mental suffering, and psycho-traumatic disability.

The Facts:

Marta Piresferreira joined Bell Mobility in Ottawa in 1996 as an account manager selling cellular phones to the federal government and corporate clients. Her work at Bell Mobility later became focused on selling solely to federal government departments, agencies and Crown corporations.

From 1996 to 2003, Piresferreira received excellent performance reviews, meeting or exceeding all her targets and being rewarded with bonuses and trips. In 2004, however, she encountered serious difficulties and missed a number of her financial objectives due to external circumstances that were beyond her control. As a result of her 2004 shortfalls, Piresferreira's supervisor, Ottawa sales manager Richard Ayotte, became disenchanted with her.

Ayotte had an aggressive personality, and was given to swearing and raising his voice in an intimidating management style. He became increasingly frustrated and annoyed by Piresferreira's resistance to his suggestions for improving her results; her insistence that the sales difficulties she was encountering were not the result of anything she could be doing better; and her habit of coming to him with problems that he believed she should solve herself. He took to yelling and swearing at her in an attempt to make her accept his views. By mid-2005, her sales results had improved somewhat, but Ayotte's view of her had not.

Matters came to a head in the spring of 2005, after Ayotte arranged for technical staff from BlackBerry maker Research in Motion (RIM) to come to Ottawa on May 12 and 13 to meet with Bell Mobility's government clients who were having a particular technical problem with the devices. Despite e-mail exchanges with her contact at Industry Canada, one of her major clients, Piresferreira was unable to persuade the department to make the affected staff available on the scheduled days. When she told Ayotte this on the morning of May 12, he became extremely angry and yelled and swore at her in the presence of a senior marketing executive who was visiting that day, saying that she did not know what she was doing and was failing to do her job. Piresferreira, very upset, apologized and left.

Later that morning, Piresferreira encountered Ayotte in a hallway, and he started yelling at her again about the same matter, demanding to know why he had been able to schedule a meeting between Industry Canada and RIM representatives for the following day with a single phone call, and shouting things such as "you don't know what the [f**k] you're talking about." Piresferreira kept insisting that she had done everything possible and tried to show him an e-mail on her BlackBerry as proof of her efforts. Ayotte continued walking, saying that he was not interested in seeing her e-mail and telling her to get away from him.

Piresferreira followed him as he walked, persisting in trying to show Ayotte the e-mail, until he finally stopped and glared at her. When she again held out the BlackBerry and asked him to please have the decency to look at it, he told her to get away from him and pushed her on the shoulder, propelling her backward about a foot against a filing cabinet. He then went on to his office. Extremely upset and feeling violated by the physical aggression, Piresferreira followed him to his office and told him from the doorway that he shouldn't have done that. He told her to "get the hell out of my office" and that he hadn't done anything. Shortly afterward, he started drafting a draconian performance improvement plan for her that would require her, on pain of possible dismissal, to take specific remedial steps regarding her work and to meet with him daily to report on progress.

For her part, Piresferreira went home very upset. The next day, a Friday, she honoured a pre-existing commitment to meet with a client to close a deal, but did not go to the Bell Mobility office, and she took the first three days of the following week off. Throughout her time off, she remained in emotional distress, crying, unable to sleep, and talking constantly to her partner about what had happened. When she returned to the office, Ayotte acted as if nothing had happened, did not apologize, and promptly presented her with the performance improvement plan, which she did not sign. She then formally complained to a Bell Mobility human resources representative about the whole sequence of events. This representative reported the complaint to Ayotte's supervisor, the Montreal-based regional sales manager.

Piresferreira subsequently went on sick leave due to stress, and never returned to work. The human resources representative advised her in a May 24, 2005 letter that a written disciplinary warning would be given to Ayotte for unacceptable behaviour in the workplace, that he would be asked to attend two courses on effective communication and conflict resolution, and that on this basis the case was closed. Ayotte did not attend these four-hour courses, which he had in fact already taken online in the past. No one from Bell Mobility ever called Piresferreira to ask how she was doing, follow up, offer apologies, or discuss a possible return to work, until after the start of litigation.

Piresferreira's condition continued to deteriorate, and she was eventually diagnosed with post-traumatic stress disorder and a major depressive condition. Aged 60 at the time of the May 2005 incident, she remained unable to return to any employment, whether at Bell Mobility or elsewhere, due to her medical condition. In August 2005, Piresferreira initiated legal action in the Ontario Superior Court against Bell Mobility and then subsequently against Ayotte. Ayotte continued in his position until his retirement in September 30, 2006. Bell Mobility took the position that, by refusing to return to work, Piresferreira had resigned effective September 19, 2006 – the date she advised the employer that she would not return to a "poisoned" environment, and that she was in any event not capable of returning to work.

The Decision:

In a December 3, 2008 decision, Ontario Superior Court Judge Catherine Aitken found that Piresferreira had suffered assault and battery, intentional as well as negligent infliction of emotional distress, mental suffering, and psycho-traumatic disability, and constructive dismissal through Ayotte's conduct, and that Bell Mobility was vicariously responsible.

Judge Aitken considered that, although Piresferreira was in generally good physical and emotional health prior to the incident on May 12, 2005, she was particularly vulnerable for a number of reasons. A sensitive person who did not respond well to being yelled at or sworn at, she was working in a male-dominated environment, where the tone was rough and ready and swearing and raised voices were the norm. She felt that Ayotte did not respect her in the same way that he respected the other account managers, and she was the only account manager who had only federal government clients at a time when there were systemic reasons why government business was down.

Rejecting Ayotte's contention that he had been provoked or had acted in self-defence, Aitken determined that his action in pushing the employee constituted assault and battery. She held that "[t]he assault occurring at this point in time [when Piresferreira was already vulnerable] started a chain of events that collectively resulted in the deterioration of [her] emotional health and resulted in her disability. Included in that chain of events was Ayotte's failure to apologize for the assault, Bell Mobility's failure to apologize for the assault, Ayotte's immediate and inappropriate imposition of a PIP [performance improvement plan] and Bell Mobility's collaboration in this regard, Bell Mobility's failure to adequately investigate the incidents of May 12, 2005, Bell Mobility's failure to adequately address the risk to Piresferreira of her continuing under Ayotte's supervision [and] Bell Mobility's failure to adequately discipline Ayotte for the assault...."

Aitken held that Bell Mobility was vicariously liable for everything that had occurred, because it had "set up a reporting arrangement whereby its information regarding the account managers' work, Ayotte's relationship with the account managers, and the environment at the Ottawa office, all came from Ayotte…. In entrusting this level of control to Ayotte, Bell Mobility had to assume responsibility for how Ayotte managed the Ottawa office and dealt with the personnel there…. Bell Mobility entrusted the supervisory role to Ayotte and is responsible when Ayotte did not handle that role properly."

The judge determined that Ayotte was liable for intentional infliction of emotional distress and harm, and the employer was vicariously liable, because "Ayotte showed reckless disregard for Piresferreira's emotional well-being when he yelled and swore at her, assaulted her, immediately threatened probation or a PIP, refused to apologize for his conduct, delivered the PIP to her at the first opportunity, misled [the regional manager and the human resources representative] as to his conduct on May 12th and attempted to bias them against Piresferreira in advance of her filing a complaint against him." She likewise found negligent infliction of emotional distress and harm, in breach of Ayotte's and Bell Mobility's duty of care toward the employee.

Aitken also ruled that Piresferreira had been constructively dismissed, because "by May 24, 2005, Piresferreira's continued employment in the environment at the Ottawa Bell Mobility office was no longer possible. Bell Mobility was not living up to the implied term of any employment relationship that the employer will treat the employee with civility, decency, respect and dignity…. Ayotte's persistent verbal abuse of Piresferreira, his physical assault of her, his further intimidation of her by giving her a PIP at the time and in the manner that he did, Bell Mobility's inadequate response to the circumstances, and Bell Mobility's failure in any meaningful way to ensure that Piresferreira's work environment would not be so hostile or intimidating as to further injure her psychological health meant that Bell Mobility had constructively dismissed Piresferreira." [emphasis in original]

Concluding, finally, that "in the absence of Ayotte's assault, intimidation and verbal abuse on May 12th, his refusal to assume responsibility for his behaviour and his inappropriate use of the PIP, Piresferreira would not have suffered the incapacitating anxiety and depression that she has suffered since May 12, 2005," Judge Aitken awarded her damages totaling $500,955.

These damages comprised $45,000 in general damages for assault, battery, and intentional and negligent infliction of emotional distress, mental suffering and psycho-traumatic disability; $450,832 for loss of past and future income, based on her salary and bonuses (assuming employment until age 65); and special damages of $5,123 for the cost of psychotherapy sessions and medications. Damages were quantified for constructive dismissal, including moral/compensatory damages for the manner of dismissal; however, none were ordered payable since "[t]o have damages payable under both the contract and tort claims would amount to double recovery…."

According to John Yach, of the Ottawa labour and employment law firm of Shields & Hunt, who represented Ms. Piresferreira, the case is under appeal. Readers will be kept apprised of further developments.

Piresferreira v. Ayotte and Bell Mobility Inc.

Ontario Superior Court
Judge Catherine Aitken
December 3, 2008

Read the full text of the Ontario Superior Court's decision in Piresferreira v. Ayotte and Bell Mobility Inc.