We discussed the jury award in this case in a previous blog. At that time, there was no written
decision and we had only the news reports to inform us as to the
amount and types of damages that the jury had awarded. The
Court of Appeal's decision provides clarity on the actual
damages awarded by the jury and the reasons why they were
Ms. Boucher was an assistant manager of a store. She had
been a long time employee of Wal-Mart. She had worked at a
number of other stores as she progressed through her career.
Her last stop was Windsor where she reported to Mr. Pinnock,
who was the store manager. The jury found that over the
course of her time at the Windsor store Mr. Pinnock frequently
verbally abused her, humiliated her in front of her colleagues and
deliberately set out to cause her to quit her job. In the
end, that is exactly what she did when she reached a point where
his conduct was unbearable and was directly affecting her
In the course of the conduct by Mr. Pinnock, the jury also found
that Ms. Boucher brought her concerns to the head office of
Wal-Mart. They conducted an investigation that the jury found
to be wanting. In the end, the jury concluded that the
actions of Wal-Mart in response to her complaint further aggravated
The jury awarded Ms. Boucher damages against Wal-Mart for
constructive dismissal of 20 weeks (as set out in her written
employment agreement), $200,000 of aggravated damages and $1M of
punitive damages. Against Mr. Pinnock, the jury awarded
$100,000 for intentional infliction of mental suffering and
$150,000 for aggravated damages. Wal-Mart was considered
vicariously liable for the damages against Mr. Pinnock.
The Court of Appeal reduced the aggravated and punitive damages
as follows: against Pinnock $100,000 for intentional
infliction of mental suffering and $10,000 in punitive damages;
against Wal-Mart $200,000 of aggravated damages and $100,000 of
punitive damages. Wal-Mart was also liable to pay $140,000 in
trial costs. Costs on the appeal have not yet been
The liability of Wal-Mart is still quite substantial, and the
matter may yet proceed to the Supreme Court. The case
is a stern example of how seriously the courts (with or
without a jury) will treat bullying and harassment by a manager and
an employer's failure to effectively investigate and deal with
such a situation. We note the striking similarity in
the facts of this case to the recent decision of the Workplace
Safety and Insurance Appeals Tribunal which we addressed in another
blog. In one case, the employee sued the
manager and employer and in the other (a unionized workplace) the
employee brought a claim for benefits under the Workplace Safety
and Insurance Act.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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