Canada: The Latest On Intentional Infliction Of Mental Suffering: Boucher v. Wal-Mart (ONCA)

Last Updated: June 6 2014
Article by Lisa Gallivan and Alison Strachan

In September 2012, a jury in Ontario assessed damages for a former Walmart employee. In late May 2012, the Ontario Court of Appeal ("the Court") (with one justice in dissent) varied those damages in Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419. The following briefly reviews highlights of the decision.

For ease of reference, the outcomes at the jury trial and appeal were as follows:

Against her former Manager:

 Jury Award Appeal
Intentional Infliction of Mental Suffering $100,000 Upheld
Punitive Damages $150,000 Varied to $10,000
Aggravated Damages $200,000 Upheld

Against her former employer, Wal-Mart


Intentional Infliction of Mental Suffering   (vicarious) $100,000 Upheld
Punitive Damages $1,000,000 Varied to $100,000
Aggravated Damages $200,000 upheld
20 weeks salary (per employment agreement) N/A N/A
$1,750,000 $710,000


Why is this decision important to lawyers and employers?

There are several lessons to learn from the decision – two of the more significant are outlined below.

(a) Aggravated Damages: The Tort of Intentional Infliction of Mental Suffering

To be successful in receiving compensation for this tort, a plaintiff must prove:

  • The defendant's conduct was flagrant and outrageous;
  • The defendant's conduct was calculated to harm the plaintiff;
  • The defendant's conduct caused the plaintiff to suffer a visible and provable illness.

In all cases, for the plaintiff to establish intentional infliction of mental suffering, it must show that the defendant intended to produce the kind of harm that occurred or knew that it was almost certain to occur (Piresferreira v. Ayotte, 2010 ONCA 384, leave to appeal to SCC refused at [2010] SCCA No. 283).

In this case there was evidence that the former manager publicly berated the employee and that his overall conduct resulted in her inability to eat or sleep, physical health complaints and the use of sedatives for all stress-related manifestations of workplace harassment. What did the former manager do? Here's what the Court of Appeal summarized in the second paragraph of its decision:

At first Boucher and Pinnock worked well together. Their relationship turned sour, however, after an incident in May 2009 in which Boucher refused to falsify a temperature log. Pinnock then became abusive towards her. He belittled, humiliated and demeaned her; continuously, often in front of co-workers. Boucher complained about Pinnock's misconduct to Wal-Mart's senior management. They undertook to investigate her complaints. But in mid-November 2009 they told her that her complaints were 'unsubstantiated' and that she would be held accountable for making them. A few days later, after Pinnock again humiliated Boucher in front of other employees, she quit. A few weeks later she sued Wal-Mart and Pinnock for 'constructive' dismissal and for damages.

Some of the types of behaviour inflicted on the former employee by her manager were summarized from her evidence in the decision:

  • [the manager] pulled employees who reported to [the former employee] into morning store tours and in front of them told [the former employee] how stupid she was, and that her career was blowing away;
  • When [the manager] criticized [the former employee], he pounded his chest and said "let me know when you can't fucking handle it anymore";
  • [the manager] berated Boucher in front of other managers, and even store customers: "he would say this is a fucking shit show, look at this fucking mess";

The decision noted that co-workers testified that:

  •  [the manager's] treatment toward [the former employee] was "humiliating", "we were constantly called idiots like we were so stupid"; and
  •  [the manager's] treatment of [the former employee] was "terrible, horrific".

Wal-Mart concluded that the employee's complaints were "unsubstantiated". She was advised that she would be held accountable. The Court found that Wal-Mart's management team appeared to ignore numerous incidents in which the former manager berated her in front of co-workers and did not seek information from witnesses who had witnessed the abusive conduct.

The Court found that the manager's conduct was flagrant and outrageous; that it intended to produce the harm that eventually occurred; and the stress caused as a result of that conduct caused physical symptoms.  The Court found Wal-Mart took no steps to end the manager's misconduct and did not take the former employee's complaints seriously. It failed to enforce its workplace policies that were designed to protect employees from the kind of treatment the former employee was subjected to. It threatened the former employee with retaliation for making complaints. This showed that Wal-Mart's own conduct justified a separate and substantial award for aggravated damages.

This decision is a harsh reminder that workplace harassment, or bullying, is unacceptable in the workplace.

(b) Punitive Damages

Punitive damages are aimed at punishing defendants for malicious, oppressive and high handed behaviour that is a marked departure from ordinary standards of decent behaviour. The Court said in this case that once it upheld aggravated damages (above), it became necessary to ask whether punitive damages were required for the purpose of retribution, denunciation and deterrence.

In finding that the tort damages carried a punitive component, the Court reduced the punitive damages award against the manager from $150,000 to $10,000 saying:

The award of tort damages against [the manager] is very high. The magnitude of this compensatory award carried a strong punitive component. The compensatory award alone provided retribution to [the former employee], substantially denounced [the manager] for his conduct ... an additional award of $150,000 against an individual employee is not rationally required to achieve these purposes or to punish [the manager].

As for Wal-Mart, its conduct was "sufficiently reprehensible to merit an award of punitive damages", but again, the Court said the high aggravated damage award sent a "significant and denunciatory and punitive message and will likely have a deterrent effect" and reduced the punitive damages from $1,000,000 to $100,000, saying:

Here, by contrast, Wal-Mart is already liable for significant compensatory damages. Its misconduct lasted less than six months. It did not profit from its wrong. And while it obviously maintained a power imbalance over [the former employee], it did not set out to force her resignation. In the light of these considerations, a punitive damages award of $100,000 on top of the compensatory damages it must pay is all that is rationally needed to punish Wal-Mart and denounce and deter its conduct. ...

While malicious, oppressive and high handed behaviour is never condoned, the jury award of $1,000,000 stirred the legal community when it first came out as setting a target for subsequent jury trials. This decision, and the Pate Estate v. Galway-Cavendish and Harvey (Township), 2013 ONCA 669 decision, confirm that courts must avoid the "pitfall of double-compensation or double-punishment" discussed by Bastarache J. in Honda Canada Inc. v. Keays, 2008 SCC 39 (CanLII) and seemingly reins in punitive damages for future courts consideration.

What this means to employers

While the focus in the appeal was on damages, the message on liability cannot be any clearer or stronger. Workplaces demand respect and civility from all participants.  Complaints of harassment or bullying by employees must be taken seriously. The Wal-Mart case confirms again that employers have a duty to properly respond and deal with complaints as they arise. Those are the standards that apply to today's workplace and departing from them increases the risk of high damages being awarded.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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.

Lisa Gallivan
Alison Strachan
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.