The Latest On Damages For Mental Suffering

By Alfred Kempf
Categories: Blog, Employment Law

The Ontario Court of Appeal in a 2010 decision (Piresferreira v. Ayotte) has purported to limit recovery by employees for damages caused by an employer for negligent and/or deliberate infliction of mental suffering. The Employee had at the trial level been awarded damages for future loss of income to the date of retirement since the court accepted that she was permanently scarred by the bullying conduct of her supervisor (which was condoned in good measure by her employer). The conduct included extensive verbal abuse and culminated with the supervisor shoving the employee.
 
The case muddies the already murky water surrounding compensation for harassed employees. The reasons do not adequately explain why damages for negligent and/or intentional infliction of mental suffering could not be awarded given previous appellate cases which have accepted them. This cause of action would seem to the most fitting to compensate for bullying or harassment.
 
The Court also cast doubt on the duty of care by and Employer to an employee for "policy reasons".  Given the proliferation of anti-harassment policies in our workplaces if would seem strange to suggest that the courts should not exercise discretion to deal with these situations.

Hopefully the case may be appealed to the Supreme Court of Canada in order that this area of law can be clarified for the benefit of employees and employers.   Even if the case is not appealed it is unlikely to be the last word on the subject.