On May 28, 2010, the Ontario Court of Appeal ruled that an employer or supervisor cannot be sued in tort for negligent and intentional infliction of mental distress in the context of an employment relationship.
In Piresferreira v. Ayotte, 2010 ONCA 384, the court reversed an earlier decision by the Ontario Superior Court and significantly reduced the damages awarded by the trial judge in 2009.
The plaintiff, Marta Piresferreira, was employed as an account manager at Bell Mobility in Ottawa. She had been under the supervision of the defendant, Richard Ayotte, since 1997.
As established in Court, Ayotte was a “critical, demanding, loud and aggressive manager,” who had become more “verbally abusive” over time, and particularly towards Piresferreira beginning in 2004. In May 2005, Ayotte shoved Piresferreira in the course of an argument, where she was trying to have him read an e-mail on her BlackBerry.
When she went to his office and told him that he should not have pushed her, he informed her that he was in the process of preparing a performance improvement plan (“PIP”) for her. She went back to her desk and cried, and after speaking to co-workers, collected her things and went home.
When she returned to the office a few days later, Ayotte delivered the PIP, which included an onerous schedule of meetings with him. She refused to sign the PIP, left and never returned to work.
Approximately a week after the altercation, Piresferreira filed a formal complaint with the human resources department of Bell Mobility. The company investigated the incident and issued Ayotte a disciplinary warning. It then moved to implement the PIP at a meeting, which Piresferreira declined to attend due to the fact that she would be on sick leave.
Bell sent Piresferreira a letter stating that they had taken steps to address the matter with Ayotte, and noted incorrectly that she had declined to attend a meeting to allow Ayotte to offer his formal apologies. The letter also stated that the case was considered closed.
In August 2005, Piresferreira commenced an action against Ayotte and Bell Mobility for constructive dismissal and sought damages for battery and intentional infliction of mental distress. Judy Scott, her long-term partner, also brought an action under the Family Law Act for loss of guidance, care and companionship.
Piresferreira, who was in her early sixties at the time she was contructively dismissed, was subsequently diagnosed with post-traumatic stress disorder and major depressive disorder.
At trial in 2008, Justice Catherine Aitken of the Ontario Superior Court ruled that the defendants were liable for the torts of negligent infliction of mental suffering, intentional infliction of mental suffering and battery and that “Ayotte's threat of placing Piresferreira on probation or on a PIP immediately after he had assaulted her and then his delivering a PIP to her the first time she returned to the office – without first having assumed responsibility for his abusive behaviour – was flagrant and outrageous.”
She also ruled that Ayotte's conduct was “calculated to produce harm” even if he did not actually intend for her to suffer the injury she did.
Justice Aitken concluded that Piresferreira could never work again because of the disability caused by Ayotte and Bell Mobility.
Damages were awarded against the defendants in the amount of $500,955 plus a costs award of $225,000. The damages included an award of general damages of $45,000 for assault, battery, negligent and intentional infliction of emotional distress, mental suffering and psycho-traumatic disbility.
Also included were general damages of $450,832 for loss of income during the notice period and for loss of income up to age 65 due to an inability to work stemming from her mistreatment.
Justices Russell Juriansz, Eleanore Cronk and Susan Lang of the Ontario Court of Appeal overturned the damage award and determined that an employer cannot be sued in tort for negligence and negligent infliction of mental suffering.
The Court found that the trial judge had placed too much weight on Ayotte's failure to apologize in concluding that his conduct was flagrant and outrageous.
The Court further ruled that, “... 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.”
Awards were maintained for the tort of battery, for $15,000, for which Bell Mobility and Ayotte were jointly liable. Awards of a 12-month period of notice and an additional $45,000 for mental suffering in the manner of dismissal were also provided.
All other damages awarded by the trial judge were set aside.
Counsel for the respondents has applied for leave to appeal to the Supreme Court of Canada.
Ronald Caza and Denis Boivin of Heenan Blaikie LLP represented the appellants, Richard Ayotte and Bell Mobility Inc.
John Yach of Shields & Hunt represented the respondents, Marta Piresferreira and Judy Scott.
In Piresferreira v. Ayotte, 2010 ONCA 384, the court reversed an earlier decision by the Ontario Superior Court and significantly reduced the damages awarded by the trial judge in 2009.
The plaintiff, Marta Piresferreira, was employed as an account manager at Bell Mobility in Ottawa. She had been under the supervision of the defendant, Richard Ayotte, since 1997.
As established in Court, Ayotte was a “critical, demanding, loud and aggressive manager,” who had become more “verbally abusive” over time, and particularly towards Piresferreira beginning in 2004. In May 2005, Ayotte shoved Piresferreira in the course of an argument, where she was trying to have him read an e-mail on her BlackBerry.
When she went to his office and told him that he should not have pushed her, he informed her that he was in the process of preparing a performance improvement plan (“PIP”) for her. She went back to her desk and cried, and after speaking to co-workers, collected her things and went home.
When she returned to the office a few days later, Ayotte delivered the PIP, which included an onerous schedule of meetings with him. She refused to sign the PIP, left and never returned to work.
Approximately a week after the altercation, Piresferreira filed a formal complaint with the human resources department of Bell Mobility. The company investigated the incident and issued Ayotte a disciplinary warning. It then moved to implement the PIP at a meeting, which Piresferreira declined to attend due to the fact that she would be on sick leave.
Bell sent Piresferreira a letter stating that they had taken steps to address the matter with Ayotte, and noted incorrectly that she had declined to attend a meeting to allow Ayotte to offer his formal apologies. The letter also stated that the case was considered closed.
In August 2005, Piresferreira commenced an action against Ayotte and Bell Mobility for constructive dismissal and sought damages for battery and intentional infliction of mental distress. Judy Scott, her long-term partner, also brought an action under the Family Law Act for loss of guidance, care and companionship.
Piresferreira, who was in her early sixties at the time she was contructively dismissed, was subsequently diagnosed with post-traumatic stress disorder and major depressive disorder.
At trial in 2008, Justice Catherine Aitken of the Ontario Superior Court ruled that the defendants were liable for the torts of negligent infliction of mental suffering, intentional infliction of mental suffering and battery and that “Ayotte's threat of placing Piresferreira on probation or on a PIP immediately after he had assaulted her and then his delivering a PIP to her the first time she returned to the office – without first having assumed responsibility for his abusive behaviour – was flagrant and outrageous.”
She also ruled that Ayotte's conduct was “calculated to produce harm” even if he did not actually intend for her to suffer the injury she did.
Justice Aitken concluded that Piresferreira could never work again because of the disability caused by Ayotte and Bell Mobility.
Damages were awarded against the defendants in the amount of $500,955 plus a costs award of $225,000. The damages included an award of general damages of $45,000 for assault, battery, negligent and intentional infliction of emotional distress, mental suffering and psycho-traumatic disbility.
Also included were general damages of $450,832 for loss of income during the notice period and for loss of income up to age 65 due to an inability to work stemming from her mistreatment.
Justices Russell Juriansz, Eleanore Cronk and Susan Lang of the Ontario Court of Appeal overturned the damage award and determined that an employer cannot be sued in tort for negligence and negligent infliction of mental suffering.
The Court found that the trial judge had placed too much weight on Ayotte's failure to apologize in concluding that his conduct was flagrant and outrageous.
The Court further ruled that, “... 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.”
Awards were maintained for the tort of battery, for $15,000, for which Bell Mobility and Ayotte were jointly liable. Awards of a 12-month period of notice and an additional $45,000 for mental suffering in the manner of dismissal were also provided.
All other damages awarded by the trial judge were set aside.
Counsel for the respondents has applied for leave to appeal to the Supreme Court of Canada.
Ronald Caza and Denis Boivin of Heenan Blaikie LLP represented the appellants, Richard Ayotte and Bell Mobility Inc.
John Yach of Shields & Hunt represented the respondents, Marta Piresferreira and Judy Scott.
Lawyer(s)
Denis W. Boivin
John H. Yach
Ronald F. Caza
Firm(s)
Shields & Hunt