Ruling that the common law tort of negligent infliction of mental suffering does not exist in the employment context, the Ontario Court of Appeal has held that employers do not have a duty of care to shield employees throughout the course of their employment from acts that might cause them mental distress.

In a May 28, 2010 decision that dealt with the constructive dismissal of a Bell Mobility employee who was shoved by her supervisor and then presented with a Performance Improvement Plan regarding her work instead of an apology, the Court also held that while an action for the tort, i.e. civil wrong, of intentional, as opposed to negligent, infliction of mental suffering is available to employees, it had not been made out in the present case. Partially allowing the employer's appeal, the Court reduced the trial judge's award of more than $500,000 in employment and tort damages to just under $148,000.

The Facts:

Employed by Bell Mobility Inc. since 1996, MP worked in the company's Ottawa office as one of six account managers under the supervision of sales manager RA, who was a critical, demanding, loud and aggressive boss. MP, for her part, had a nervous and sensitive personality, and did not deal well with criticism, regardless of how it was delivered.

MP received excellent performance reviews every year until 2004, a year in which she encountered serious difficulties and missed a number of her financial objectives. Her performance reviews for 2004 indicated a need for improvement, and RA became disenchanted with her. He was increasingly frustrated and annoyed by her resistance to his suggestions for improving her results; her insistence that the sales difficulties she was encountering were not her fault; and her habit of coming to him with problems that he believed she should solve herself. As a result, 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 RA's view of her had not.

On May 12, 2005, RA learned that MP had failed to arrange a meeting with a client. After arranging the meeting himself on short notice, RA yelled and swore at MP while criticizing her for failing to do her job. Encountering RA in a hallway later that morning, MP kept insisting that she had done everything possible to arrange the meeting and tried to show him an e-mail on her BlackBerry as proof of her efforts. RA continued walking, saying that he was not interested in seeing her e-mail and telling her to get away from him. When MP followed him as he walked and held up the BlackBerry in front of him, he told her again 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.

MP followed him there and told him from the doorway that he should not have pushed her. RA told her to "get the hell out of my office" and that he was preparing a Performance Improvement Plan (PIP) regarding her performance. He then proceeded to draft and submit to Bell Mobility's human resources department a draconian PIP that would require MP, on pain of possible dismissal, to take specific remedial steps regarding her work and to meet with him daily to report on progress. MP, meanwhile, went home very upset.

The next day, a Friday, MP honoured a pre-existing commitment to meet with a client to close a deal, but did not go to the Bell Mobility office. 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, RA 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 RA's supervisor, the Montreal-based regional sales manager.

MP 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 RA 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. No one from Bell Mobility called MP to ask how she was doing, follow up, offer apologies, or discuss a possible return to work, until after the start of litigation.

MP'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 medically unable to take up any employment, whether at Bell Mobility or elsewhere. In August 2005, MP initiated legal action in the Ontario Superior Court against Bell Mobility and then subsequently against RA. RA continued in his position until his retirement on September 30, 2006. Bell Mobility took the position that, by refusing to return to work, MP 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 Lower Court Decision:

In a December 3, 2008 decision, Ontario Superior Court Judge Catherine Aitken awarded MP more than $500,000 in damages, finding that RA and Bell Mobility were jointly and severally liable for the torts of battery, negligent as well as intentional infliction of emotional distress, mental suffering, and psycho-traumatic disability, and that Bell was liable for constructive dismissal through RA's conduct.

While finding Bell Mobility vicariously responsible for RA's negligent as well as intentional infliction of mental suffering, Justice Aitken also found Bell directly liable for negligent infliction, holding that Bell Mobility "as [MP's] employer" and RA "as her immediate supervisor" owed her "the duty to ensure that [she] was working in a safe and harassment-free environment ... all in accordance with Bell Mobility's Code of Business Conduct." This code guaranteed employees the "right to work in an environment free from violence and threats" and prohibited "all acts of physical, verbal or written aggression or violence."

The amount of $500,000 in tort damages was calculated mainly on the basis of loss of future income until retirement. With regard to the constructive dismissal, Justice Aitken assessed MP's wage loss at $87,855 based on a twelve-month notice period and her damages for mental distress from the manner of dismissal at $45,000, but these amounts were not awarded in light of the amount awarded for tort damages. RA and Bell Mobility appealed the decision to the Ontario Court of Appeal.

The Decision:

The Ontario Court of Appeal ruled that the tort of negligent infliction of mental suffering does not exist in the employment context and that the tort of intentional infliction of mental suffering was not made out in this case, with the result that MP was entitled only to damages for battery, constructive dismissal and mental distress from the manner of dismissal.

Writing the unanimous decision of a three-member panel of the Court, Justice Russell Juriansz focused on the issue of negligent infliction of mental suffering. He held, first, that "[a]ccepting that Bell Mobility's Code of Business Conduct was part of the employment contract, a breach of a contractual duty cannot be the basis for the recognition of a common law tort. For concurrent tort liability to be available there must be a common law duty of care that would exist even in the absence of the specific contractual term which created the corresponding contractual obligation…. Here, the trial judge rested her finding that [MP] had established the tort of negligent infliction of mental suffering on Bell Mobility's failure to treat her 'in accordance with Bell Mobility's Code of Business Conduct'…. The trial judge erred in basing the standard of care on a contractual obligation."

Justice Juriansz then asked: "Could the trial judge have rested her conclusion on a tort duty of care?" Observing that "no Canadian appellate court has recognized a free standing cause of action in tort against an employer for negligent infliction of mental suffering by an employee," he applied the two-part test for determining whether a duty of care arises that was set out in Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), as adopted and recast by the Supreme Court of Canada in Nielsen v. Kamloops (City), [1984] 2 S.C.R. 2. He explained that this test "involves asking first whether the relationship between the plaintiff and the defendant is sufficiently close or 'proximate' to render damages reasonably foreseeable and justify the imposition of a duty of care, and second, whether there are countervailing policy considerations why a duty of care should be limited or not recognized."

Juriansz determined that "[t]he relationship of employer and employee puts the parties in a relationship of proximity" and that "I see no reason to resist the finding of the trial judge that it was reasonably foreseeable that [MP] would experience mental suffering from the abusive manner in which [RA] supervised her during her employment." He held, however, that "it must be determined whether policy considerations foreclose the recognition of a duty of care. In my view, they do."

He noted that "the Supreme Court has already strongly intimated that the recognition of such a tort in the employment context is better left to the legislature. In Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, Iacobucci J. writing for the majority rejected the notion that a tort [action] existed for breach of a good faith and fair dealing obligation by employers in dismissing employees." In this regard, he reasoned that "[t]he duty of care put forward in this case is broader than the duty that was rejected in Wallace. A general duty to take care to shield an employee during the entire course of his or her employment from acts in the workplace that might cause mental suffering strikes me as far more expansive than a duty to act fairly and in good faith during just the termination process. The duty rejected in Wallace would have applied only at the time of termination and to the manner of termination. The duty put forward in this case would apply in the course of employment as well as to its termination. The general duty postulated would require employers to take care to shield employees from the acts of other employees that might cause mental suffering."

Juriansz considered that "[i]n a case in which the employer's allegedly tortious behaviour includes the termination of the employee, compensation for mental distress is available under the framework the Supreme Court has set out in Honda [Honda Canada v. Keays, [2008] 2 S.C.R. 362]. In a case in which the employer does not terminate the employee, the employee who is caused mental distress by the employer's abusive conduct can claim constructive dismissal and still have recourse to damages under the Honda framework. Recognizing the tort in the employment relationship would overtake and supplant that framework and all of the employment law jurisprudence from which it evolved. In other words, in the dismissal context, the law already provides a remedy in respect of the loss complained of here. The recognition of the tort is not necessary."

Juriansz went on to hold: "That leaves the category of cases in which the employee suffers mental distress from employer conduct that would not provide the grounds for a claim of constructive dismissal…. The court is often called upon to review the work performance of employees and the content and manner of their supervision in dismissal cases. It is unnecessary and undesirable to expand the court's involvement in such questions. It is unnecessary 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 a real potential to constrain efforts to achieve increased efficiencies, and the postulated duty of care is so general and broad it could apply indeterminately."

Juriansz set aside the trial judge's finding that RA and Bell Mobility were liable for committing the tort of negligent infliction of mental suffering, "as the tort is not available in the employment context." While employees can sue their employers or supervisors for the intentional infliction of mental suffering, in the present case this tort was not made out, as "the trial judge erred in law by concluding that the second element of this tort – the requirement that the conduct be calculated to produce harm – was established."

In this regard, "[the trial judge] did not consider and the evidence does not support the inference that [RA] intended or knew it was substantially certain to follow that [MP] would suffer posttraumatic stress disorder … or a major depressive disorder…, with the result that she would never be able to work in any employment again and that her personal life would be changed so dramatically. At most, the trial judge found … that serious psychological injury was foreseeable [by RA]. Foreseeability, which indicates only that a result may follow, is much less than knowledge that a result is substantially certain to follow."

In the result, the Court of Appeal allowed the appeal in part, ruling that MP was entitled only to damages of $15,000 for the battery, $87,855 in lieu of notice for the constructive dismissal and $45,000 for mental suffering due to the manner of the dismissal.

Comment:

Although the Court of Appeal said that "no Canadian appellate court has recognized a free standing cause of action in tort against an employer for negligent infliction of mental suffering by an employee," it is noteworthy that the Court did not cite any instance in which an appellate court has denied the existence of such a tort. There is in fact recent case law affirming the existence of such a tort. In Sulz v. Canada (Attorney General), [2006] B.C.J. No. 121 (QL) (reviewed in Lancaster's Wrongful Dismissal and Employment Law News, July/August, 2006), a British Columbia Supreme Court judge awarded a former Royal Canadian Mounted Police constable damages of $950,000 against the B.C. government for negligent infliction of mental suffering, finding the province vicariously liable for the persistent and permanently psychologically damaging harassment inflicted on her by the commander of her detachment while the RCMP was serving as a provincial police force pursuant to a policing agreement with the federal government. The British Columbia Court of Appeal upheld the award in its entirety ([2006] B.C.J. No. 3262 (QL)). While the validity of the tort was not raised as a ground of the appeal, which focused on the provincial government's liability for the RCMP as employer in the circumstances of the case, the unanimous three-member panel of the Court, including Chief Justice Lance Finch, did not express any reservations about the existence of such a tort.

Moreover, the Ontario Court of Appeal's decision in the present case seems unlikely to have a bearing on labour arbitration law such as Arbitrator Owen Shime's recent groundbreaking award of $500,000, including $50,000 for mental distress, to an employee who was dismissed in bad faith based on an unfounded allegation of malingering while recuperating from surgery: see Public Service Alliance of Canada, Local 0004 v. Greater Toronto Airports Authority (reviewed in Lancaster's Labour Arbitration E-Bulletin, April 22, 2010, Issue No. 124). Arbitrator Shime based the mental distress aspect of his award not on a tort of negligent breach of a common law duty of care as in the present case, but rather on breach of the collective agreement, which the arbitrator characterized as a contract designed to secure a psychological benefit, i.e. the "'mental security' [of] being gainfully employed" under a collective agreement requiring just cause for termination. See also Amalgamated Transit Union v. Toronto Transit Commission (2004), 132 L.A.C. (4th) 225 (QL) (Shime). In reaching this result, Shime relied on Fidler v. Sun Life Assurance Co. of Canada, [2006] 2 S.C.R. 3, in which the Supreme Court of Canada upheld a lower court award of damages against an insurance company for mental suffering due to the denial of disability benefits, since "[m]ental distress is an effect which parties to a disability insurance contract may reasonably contemplate may flow from a failure to pay the required benefits."

MP v. RA
Ontario Court of Appeal
Judges Russell Juriansz, Susan Lang and Eleanore Cronk
May 28, 2010
[2010] O.J. No. 2224 (QL)

Read the full text of the Ontario Court of Appeal's decision in MP v. RA.