On a number of occasions I have written about the new types of damages that judges are awarding terminated employees. This blog discusses a case where a trial judge awarded an employee $ 100 000 general damages because the employer committed, among other things, the tort of harassment.

Merrifield v The Attorney General

There are very few reported cases where a judge has ordered damages for committing the tort of harassment. To my knowledge, this is the first time that these damages have been awarded in an employment law case.

Tort of harassment

According to the trial judge in this case, there is a four-part test for proving harassment; namely:

(a)   Was the conduct of the employer toward the employee outrageous?

(b)   Did the employer intend to cause emotional stress or did they have a reckless disregard for causing the employee to suffer from emotional stress?

(c)   Did the employee suffer from severe or extreme emotional distress?

(d)   Was the outrageous conduct of the employer the actual and proximate cause of the emotional distress?

Tort of intentional infliction of mental suffering

In this case, the employee also claimed damages for the intentional infliction of mental suffering which has three elements. In particular, the employer’s conduct must have been (a) flagrant and outrageous, (b) calculated to harm the plaintiff and (c) it must have caused the plaintiff to suffer a visible and provable illness.

In an understatement, the judge noted: “The test for intentional infliction of mental suffering is similar to the test for harassment.” She identified two differences between the two torts; namely: “One difference is that in addition to being outrageous, the conduct resulting in intentional infliction of mental suffering must also be flagrant.  Another difference is that the plaintiff must show that he suffered a visible and provable illness.” The judge found that the employer committed this tort as well.

Note: This case was appealed to the Ontario Court of Appeal which overturned the trial decision, The Court of Appeal decision is found here.

Lessons to be learned

1. Trial judges are increasing the number of legal claims that an employer can bring against a former employer.
2. The Ontario Court of Appeal has upheld (or increased) a number of non-traditional damage awards on appeal. Case comments can be found here, here, and here (Note: the damages in this decision were upheld by the Ontario Court of Appeal).
3. Treating an employee badly can (and in some cases will) cost you.

For over 25 years, Doug MacLeod of the MacLeod Law Firm has been advising employers on all aspects of the employment relationship. If you have any questions, you can contact him at 416 317-9894 or at [email protected]