Editors:
Jennifer M. Fantini 
and
Naomi E. Calla
The Ontario Court of Appeal has ruled that the tort of "negligent infliction of mental suffering"1 is not available in the employment context. This novel tort had become a common cause of action in wrongful dismissal actions and employees more frequently began to claim damages for "mental suffering" allegedly experienced during the course of their employment. The recent decision in Pieresferreira v Ayotte2 is explored below.
The Facts
Former Bell Mobility employee Marta Pieresferreira sued her supervisor, Richard Ayotte, and her employer for wrongful dismissal and various torts, including the tort of "negligent infliction of mental suffering." Ayotte had been dissatisfied with Pieresferreira's performance and had, with the advice of Bell Mobility's human resources representatives, planned to issue a performance improvement plan ("PIP"). Before Ayotte comunicated his decision to issue a PIP, Ayotte and Pieresferreira engaged in a confrontation in which Ayotte swore at and shoved Pieresferreira. She left the workplace and remained away for a few days on a scheduled vacation.
On Pieresferreira's return to work, she was advised by Ayotte that she was being placed on a PIP. She refused to sign the PIP and filed a complaint against Ayotte. Pieresferreira left work and ultimately never returned. After a dispute with the employer over the investigation of the assault by Ayotte and her reassignment, Bell considered her to have resigned. Pieresferreira filed a claim against Ayotte and Bell Mobility alleging she had suffered prolonged and severe psychiatric illness and remained unable to work as a result of Ayotte's conduct.
Ontario Superior Court
At trial, Ayotte was found personally liable for the torts of battery, intentional infliction of mental suffering, and negligent infliction of mental suffering. Bell Mobility was found vicariously liable for the torts committed by Ayotte. Pieresferreira was awarded damages for all three torts against the defendants in the amount of $500,955, plus costs of $225,000.
Ontario Court of Appeal
Several aspects of the trial judge's decision were set aside by the Ontario Court of Appeal. Of wider interest to employers is the Court of Appeal's conclusion that the tort of negligent infliction of emotional distress is not available in the employment context.
In reaching its conclusion, the Court of Appeal applied the leading two-part test from the Supreme Court of Canada to determine whether the employer owed a duty of care to the employee in these circumstances. Applying part one of the test, the Court of Appeal in Ayotte decided that the damages suffered by the employee at the hands of her supervisor were reasonably foreseeable and that the relationship was sufficiently close or "proximate" to render such damages reasonably foreseeable.
However, in applying the second part of the test, the Court decided that policy considerations foreclosed the recognition of a duty of care in the context of negligent infliction of mental suffering. The Court noted that the Supreme Court of Canada in Wallace had already rejected the notion that a tort existed for breach of good faith and fair dealing by employers when dismissing employees. More recently, the Supreme Court confirmed in Honda that wrongful dismissal damages are confined to the loss suffered from an employer's failure to give proper notice and, further, that damages are not available for mental suffering, unless the employer and employee contemplated at the time of the employment contract that a breach of the contract might cause mental distress to an employee. The Honda decision also addresses mental suffering that arises from the manner of termination. The tort of negligent infliction of mental suffering would have had the effect of expanding an employee's claim to mental suffering that results from mistreatment during the employment relationship.
The Court in Ayotte was quick to point out that dismissed employees who believe an employer has engaged in abusive conduct causing mental suffering may bring such a claim within the existing constructive dismissal framework. The Court also noted, however, that there may be workplace disputes that fall short of constructive dismissal. Whether an employee could bring a claim in those situations may, for example, depend on whether it was foreseeable that an employee could suffer mental distress from legitimate criticism of poor work performance, an activity in which employers are routinely engaged.
The broad and general scope of the tort of negligent infliction of mental suffering in the employment context could, as the Court said in Ayotte, apply "indeterminately" in the workplace. In the Court's view, recognizing the tort would be a "considerable intrusion by the courts into the workplace" which had "real potential to constrain efforts to achieve increased productivity." The Court therefore concluded that it was against public policy to recognize a tort of negligent infliction of mental suffering and declared that the tort is "not available in the employment context."
The plaintiff has recently sought leave to appeal the Ontario Court of Appeal's decision to the Supreme Court of Canada. We will continue to monitor this area of the law and advise of any future updates as they become available.
Footnotes
1. This tort is also known as Negligent infliction of mental distress, Negligent Infliction of Emotional Distress, Mental Suffering, Nervous Shock and/or Psycho-traumatic Disability.
2. Pieresferreira v Ayotte, 2010 ONCA 384
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