By AdvocateDaily.com Staff
The tort of harassment is just the latest in a variety of avenues that courts have given employees to claim against their former employers, Toronto employment lawyer Doug MacLeod tells AdvocateDaily.com.
The civil tort was recognized for the first time in a recent Ontario Superior Court decision, currently under appeal. If it’s upheld, MacLeod, principal of MacLeod Law Firm, says it won’t be the first time that a judge has found a creative way to side with a fired employee whose claim does not fall within the traditional boundaries of the law.
“Trial judges are people, and if they want to help a sympathetic plaintiff who has been wronged, there are now many places they can go,” MacLeod says. “I see the tort of harassment as part of a movement towards new types of damages for employees who have been badly treated by employers.”
When he started in practice almost three decades ago, MacLeod says the only real legal argument between employees and employers was over the length of the notice period for which the terminated worker was to be compensated.
However, in the last decade or so, he says the increasing use of termination clauses in employment contracts, which allow employers to limit notice periods to statutory minimums under the Employment Standards Act, swung the pendulum strongly in their favour when it comes to disputes over termination.
“The difference between a termination clause notice period and a common law one is huge, even for relatively junior employees,” MacLeod says.
For example, he says a six-year employee making a $50,000 annual wage could expect around $6,000 pay in lieu of notice under a termination clause, compared with around $25,000 under the common law.
“That’s a big deal,” MacLeod says. “And for senior executives, the difference could be millions of dollars.”
The disparity in outcomes prompted a legal pushback, according to MacLeod.
“Lawyers are boundary pushers, and they have come up with all kinds of other legal rights to allege,” he says.
In 2008, the provincial government allowed employees to add human rights claims to civil actions for wrongful dismissal.
In addition, MacLeod says judges have become more willing to award punitive damages against employers, holding them vicariously liable for abusive supervisors and punishing poor behaviour in the lead-up and aftermath of terminations.
“And now we’re into torts,” MacLeod says, noting that judges had already begun awarding damages for intentional infliction of mental stress before the recent recognition of the harassment tort.
The case involved a former police officer who took a leave of absence to run for political office at the federal level. The judge concluded that the move upset his bosses, who disagreed with elements of his platform. The plaintiff launched his claim a number of years later, alleging that meritless investigations, a punitive transfer, and bullying in the workplace had caused him severe emotional distress, including depression.
In a decision that awarded the former officer $141,000 in general and special damages, the judge found he had proven the civil tort of harassment, and laid out its four-part test:
- Was the conduct of the defendant outrageous?
- Did the employer intend to cause emotional stress or did they have a reckless disregard for causing the employee to suffer from emotional stress?
- Did the employee suffer from severe or extreme emotional distress?
- Was the outrageous conduct of the employer the actual and proximate cause of the emotional distress?
The judge distinguished the new tort from the existing one for intentional infliction of mental suffering, although she found it was also proved in the police officer’s case. That tort requires the defendant’s conduct to be “flagrant” as well as “outrageous.” Plaintiffs must also show the behaviour caused a “visible and provable illness.”