In 2012, we reported on an Ontario jury award of approximately
$1.5 million damages to a 42-year-old former assistant manager who
resigned her employment at Wal-Mart after being verbally abused and
harassed by her 32-year-old store manager. At trial, the employee
was found entitled to $200,000 for intentional infliction of mental
suffering, $1 million in punitive damages and $10,000 for assault.
The manager was ordered to pay $100,000 for intentional infliction
of mental suffering and $150,000 in punitive damages. We noted that
an appeal of the award, the highest in Canada at that time, was a
virtual certainty. In fact, both parties appealed.
In Boucher v Wal-Mart Canada Corp., 2014
ONCA 419, the Ontario Court of Appeal significantly reduced the
punitive damages and dismissed the employee's claim for loss of
wages. The Court of Appeal held that a punitive award of $200,000
was sufficient to punish Wal-Mart, having regard to the magnitude
of the compensatory damages awarded, the relatively short duration
of the harassment and the fact that Wal-Mart did not deliberately
set out to bring about the employee's resignation. The punitive
award against the manager was reduced to $10,000 on the same basis.
The Court of Appeal did not alter the findings of liability. It
held that liability was justified given Wal-Mart's refusal to
take the employer's complaints seriously, its dismissal of her
complaints as unsubstantiated despite substantial evidence to the
contrary, its unwillingness to discipline the manager or intervene
to stop his continuing mistreatment of the plaintiff, its
threatened reprisal against her and its contravention of its own
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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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