Canada: Mixed Bag Of Damages: Wrongful Dismissal, Human Rights, Mental Distress And Punitive

Last Updated: August 28 2015
Article by Lisa Gallivan and Alison Strachan

In a recent Ontario decision, an employee successfully sought default judgment for a wrongful dismissal claim. The employee's evidence was uncontested and the facts set forth in the Statement of Claim were deemed to be true. Strudwick v. Applied Consumer & Clinical Evaluations Inc. 2015 ONSC 3408 (CanLII) is a decision that illustrates the full-breadth of damages that a court may award where circumstances merit.

What happened?

The employee, Ms. Strudwick, was almost 57 years old when she was dismissed in May 2011. She was a data entry clerk who was also responsible for instructing recruiting staff. She had worked for the employer, Applied Consumer & Clinical Evaluations Inc., for almost 16 years.

In October 2010, the employee became deaf likely as a result of a virus. Her uncontested evidence was that the employer's attitude towards her and treatment of her became unconscionable. She said she was constantly belittled, humiliated and isolated. For example, she sometimes needed to reschedule medical appointments on short notice and was told by her supervisor "Why don't you just quit? You can go on disability".

The dismissal happened when the employee participated in a Toastmasters Club at the workplace that for which she had been tasked with organizing topics. On this occasion, she did not select a topic from those she had prepared or speak on any topic the required one or two minutes.

The following day, the employee was confronted by the General Manager and in front of approximately 13 other employees was yelled at and called "a goddamned fool". Shortly thereafter, the General Manager returned and asked her to come to his office where she was advised that she was terminated for insubordination and wilful misconduct as a result of the "goddamned stunt" at Toastmasters the previous day. At this time, she was provided with a termination letter and a cheque for three months' pay and the General Manager demanded that she also sign an acknowledgment and waiver. When she refused, she was not provided with the cheque. She was then escorted to her desk and watched by the General Manager while she gathered her belongings in full view of other employees.

After the employee filed her Statement of Claim, the employee failed to serve or file a Defence for almost one year. The employee required intervention from a third party to receive her outstanding pay for work performed prior to her dismissal. The employer`s Record of Employment to Service Canada said that she had been dismissed for cause (insubordination and wilful misconduct) leading to her ability to receive employment insurance to be delayed. The employee sought psychiatric and social worker treatment and was diagnosed with an adjustment disorder with mixed anxiety and depressed mood as a result of her treatment by the employer. This required 18 months of behavioural therapy and other treatments at a cost close to $20,000.

What did the Court do?

The Court found that the employer had wrongfully dismissed the employee; that she had suffered injuries to her "dignity, feelings and self-respect" under Ontario's Human Rights Code; that she was entitled to aggravated damages for "infliction of mental distress"; punitive damages; and, costs. Here is the breakdown:

(a) Reasonable Notice                                          24-months

(b) Human Rights                                                  $20,000

(c) Infliction of Mental Distress                              $18,984

(d) Punitive Damages                                            $15,000

(e) Costs                                                                $40,000

The Court summed up its view of the poor behaviour by the employer when determining punitive damages at paragraph 36 saying:

The award detailed above totals $94,940.97 and I consider this award to be insufficient in all of the circumstances, particularly with regard to the need to deter the defendant and others from such conduct. There is a duty on employers to accommodate individuals with disabilities. This is reinforced when the employee has years of competent service, as in this situation. Instead of supporting this loyal employee, the employer not only discriminated against her, but treated her in a harsh and demeaning fashion.

What does this mean for employers?

Employers have a duty to accommodate individuals with disabilities. When faced with accommodation in the workplace employers should recognize a disability and take proactive steps to insure that a disability does not result in discriminatory behaviour from any employee in the workplace! In addition, employers should develop an individual accommodation plan that meets the goal of accommodation recognizing the particular individual needs or requirements of the individual being accommodated.

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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Lisa Gallivan
Alison Strachan
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