Canada: Court Of Appeal Gives Wal-Mart A Rollback

Last Updated: June 2 2014
Article by David Elenbaas and Stefanie Di Francesco

Reduces Jury's Punitive Damages Awards from $1.1 Million to $110,000

Most Ontario employers are aware that they are required by law to implement workplace violence and harassment policies. However, the recent decision of the Ontario Court of Appeal in Boucher v Wal-Mart Canada Corp. and Pinnock, 2014 ONCA 419 (CanLII), highlights that a failure to adhere to those policies in a fair and even-handed manner can prove costly to an employer. Fortunately for Wal-Mart, the Court of Appeal decided that a jury's record awards of $1.1 million in punitive damages for workplace bullying were excessive. Nevertheless, in addition to damages for constructive wrongful dismissal, the Court approved a damages award of more than $400,000 to the harassed plaintiff/employee Meredith Boucher, finding that the magnitude of the award demonstrated how offended the jury was by the employer's treatment of one of its employees.


Boucher ascended through the ranks during her nine year career at Wal-Mart and in 2008 was promoted to Assistant Manager at a store located in Windsor, Ontario. Soon thereafter Jason Pinnock, the Manager of the Windsor location, selected Boucher to be his Lead Assistant Manager.

Pinnock and Boucher had a positive working relationship until Boucher refused to alter a temperature log to improve the location's pending evaluation. Consequently, Pinnock subjected Boucher to formal discipline and made it his goal to berate, admonish and humiliate her until she resigned. Among other conduct, Pinnock was found to have regularly insulted Boucher in front of coworkers and in private, calling her such things as "a (expletive) idiot" and asking her such things as "are you (expletive) stupid?"

Attempting to engage Wal-Mart's "open door policy", Boucher brought her concerns about Pinnock's behaviour to the attention of higher management. Management investigated the complaint. However despite corroborative accounts from several employees, not only did Wal-Mart conclude that Boucher's allegations were unsubstantiated it notified her that she would be "held responsible" for making an unsubstantiated complaint.

Following another incident, in which Pinnock grabbed Boucher by the elbow in front of a group of coworkers and told her to prove to him that she could count to ten by reciting the numbers aloud, Boucher resigned. After her resignation, Boucher brought an action against Wal-Mart for constructive dismissal and against Pinnock for intentional infliction of mental suffering.

The Trial

The action was tried before a judge and jury. The jury found that Boucher had been constructively dismissed and awarded her damages equivalent to 20 weeks' salary, the notice period specified in her employment contract. The jury also awarded Boucher $1.46 million in other compensatory and non-compensatory damages: against Wal-Mart, $200,000 in aggravated damages for the manner in which Boucher was "dismissed" and $1 million in punitive damages and, against Pinnock, $100,000 for intentional infliction of mental suffering and $150,000 in punitive damages.

Wal-Mart and Pinnock appealed their liability and the amount of damages awarded by the jury. Boucher cross-appealed seeking an award for future loss of income.

The Court of Appeal

The Court was deferential to the jury on the findings of liability. It also held the jury's awards for intentional infliction of mental suffering and aggravated damages were reasonable and justified given the facts of the case. The Court concluded that Wal-Mart "paid lip service" to its open door and violence and harassment policies. By failing to enforce these policies and bring an end to Pinnock's misconduct, the Court found that Wal-Mart's actions justified a separate and substantial award for aggravated damages.

However, the Court held that the jury's record-high awards in an employment law context for punitive damages were too high. Punitive damages are intended to condemn particularly reprehensible behavior and to deter others from engaging in similar conduct. They are awarded when compensatory damages are an inadequate remedy to redress the offence committed. Ultimately the Court found that in light of the total amounts awarded to Boucher, those purposes were served with lesser punitive awards. The Court reduced the punitive damages awards against Pinnock from $100,000 to $10,000 and against Wal-Mart from $1 million to $100,000.

Despite the 90% reduction in punitive damages, neither defendant got off easy. In addition to 20 weeks' salary, $410,000 in damages were awarded against the defendants – $110,000 against Pinnock for which Wal-Mart is vicariously liable and $300,000 against Wal-Mart itself. Boucher's cross-appeal for future loss of income was dismissed because she was held not to have suffered a loss of earning capacity. The Court still has to rule on the issue of costs. As of this writing, the parties are considering whether to seek leave to the Supreme Court of Canada.

What this means for employers

It is one thing for an employer to have workplace violence and harassment policies. It is quite another to enforce them even-handedly. It is important that managers, supervisors and all other employees are fully trained on their workplace responsibilities. It is also imperative that workplace investigations are conducted fairly and impartially, and that only in the clearest of cases of bad faith complaints should an employer threaten or impose sanctions against a complainant.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2014

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

David Elenbaas
Stefanie Di Francesco
In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.