The Ontario Court of Appeal recently released its decision in
Boucher v. Wal-Mart Canada
Corp.. The trial decision, which we wrote about
in this blog, received much attention because of the
unprecedented $1.46 million in damages awarded to the Plaintiff for
The Court of Appeal decision is significant because although it
upholds many of the trial judge's instructions, it reduces the
punitive damages awarded by approximately 90% on the basis that
such amounts went beyond what was rationally required to punish the
defendants and deter their conduct.
The Plaintiff, Meredith Boucher, was a ten year employee of
Wal-Mart who resigned from employment after enduring almost six
months of abuse on the part of her supervisor, Jason Pinnock. Ms.
Boucher alerted Wal-Mart to Mr. Pinnock's behaviour early in
the course of his conduct, however little was done to address the
issue. Instead, Mr. Pinnock, who had been alerted to Ms.
Boucher's complaints by management, escalated his humiliating
and demeaning treatment of her.
After several months of this behaviour, Ms. Boucher met with
management to request a formal investigation of her allegations.
Although an investigation did take place, Wal-Mart ignored numerous
incidents Ms. Boucher reported and sought little evidence from
other employees who would have confirmed that her complaints were
well founded. Wal-Mart concluded that Ms. Boucher's allegations
were unsubstantiated and told her that she would be held
accountable for making unsubstantiated complaints. Shortly
thereafter, Mr. Pinnock humiliated Ms. Boucher yet again by
grabbing her by the elbow and berating her in front of a group of
colleagues. Ms. Boucher left the store, resigned four days later
and commenced a claim for constructive dismissal and damages.
Ms. Boucher was largely successful at trial, and was awarded the
$100,000 for intentional infliction of mental suffering and
$150,000 for punitive damages against Mr. Pinnock; and
$200,000 for aggravated damages due to the manner of Ms.
Boucher's dismissal and $1,000,000 for punitive damages against
Mr. Pinnock and Wal-Mart challenged the jury's findings on
liability and the quantum of damages, arguing that the trial judge
had incorrectly instructed the jury and that the damages were
unreasonable and excessive.
The $100,000 award for intentional infliction of mental
suffering against Mr. Pinnock (for which Wal-Mart was vicariously
liable) and the $200,000 award for aggravated damages against
Wal-Mart were upheld. While these amounts were noted to be high,
any errors made by the trial judge in the jury address were held to
have been inconsequential and causing no injustice. The amounts
awarded were determined not to be unreasonable in light of the harm
incurred by Ms. Boucher.
The punitive damages awards against both defendants, however,
were reduced significantly. The Court of Appeal took into account
that the awards against Mr. Pinnock and Wal-Mart for intentional
inflection of mental suffering and aggravated damages were already
very high and carried with them a strong punitive component. As a
result, the additional punitive damages awards against them were
held not to be rationally required to achieve the purposes of
retribution and denunciation. Accordingly, these awards against
Wal-Mart and Mr. Pinnock were reduced from $1,000,000 to $100,000
and $150,000 to $10,000, respectively.
Notably, with respect to Wal-Mart in particular, the Court of
Appeal took into account that its misconduct fell far short of the
gravity and duration of misconduct in other cases which had
attracted similarly high punitive damages awards. In particular,
Wal-Mart's misconduct had lasted less than 6 months, it did not
profit from the wrongs committed against Ms. Boucher and it had not
set out to deliberately force her resignation.
The significant reduction of the punitive damages awarded in
this case will provide some relief to employers following the alarm
caused by the initial jury decision. We also note that despite the
reduction of the jury award, the Wal-Mart case should continue to
send a strong message to employers as to the importance of
enforcing workplace policies and addressing employee complaints in
a fair, timely and effective manner.
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.
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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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