Employment Law – Causes of Action –
Negligent Infliction of Mental Suffering Not Available in
A 64-year-old plaintiff brought an action against her employer
and supervisor seeking damages for assault and battery, negligence,
loss of past and future income, breach of contract, intentional or
negligent infliction of emotional distress, mental suffering, and
nervous shock and/or psycho-traumatic disability. She also sought
damages from her employer for wrongful or constructive
The plaintiff had been an employee of Bell Mobility Inc. from
January 1997 to May 2005. She received excellent performance
reviews until 2004 when, for reasons beyond her control, she was
unable to meet her sales quota. Her sales manager, Richard Ayotte,
became increasingly frustrated at the plaintiff's performance
which resulted in verbal and physical abuse of the plaintiff.
At trial, Justice Aitken of the Superior Court of Justice
awarded the plaintiff damages totalling $500,955. On appeal, the
Court of Appeal reduced the damages award to approximately
$147,855, broken down as follows: $15,000 for a workplace battery
that occurred on 12 May 2005; $87,855 in lost wages; and $45,000
for the mental suffering the plaintiff experienced because of the
manner in which she was dismissed.
In overturning the trial judge's damages award, the Court of
Appeal considered whether the tort of negligent infliction of
mental suffering was available as a free-standing cause of action
against employers. The Court held that this tort is not available
in the employment context, in part, because public policy reasons
weigh heavily against recognizing such a duty of care under the
two-part test articulated in Anns v. Merton London Borough
Council,  A.C. 728 (H.L.). The Court of Appeal noted
that compensation for mental distress is nevertheless available
under the framework set out by the Supreme Court of Canada in
Honda v. Keays. The Court also acknowledged that employees
remain free to sue their employers or supervisors for intentional
infliction of mental suffering.
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