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.
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
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:
(c) Infliction of Mental
The Court summed up its view of the poor behaviour by the
employer when determining punitive damages at paragraph 36
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
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