Canada: Skip The Investigation And Risk Punitive Damages

Last Updated: June 1 2018
Article by Karen Tereposky

In recent cases such as Smith v Vauxhall Co-Op Petroleum Limited, 2017 ABQB 525 and Garnett v Alberta Motor Association, 2017 ABPC 267, Alberta courts have cautioned employers about the importance of properly investigating complaints of impropriety in the workplace. We have seen that disciplining an alleged wrongdoer on the basis of an inadequate investigation can lead to sanctions by the courts. According to a recent Ontario decision, the effect of which shouldn't come as a surprise, failing to investigate a complaint and then terminating the employment of the complainant is also not looked on favourably by the courts. In the case of Horner v 897469 Ontario Inc., 2018 ONSC 121, the Ontario Superior Court imposed monetary sanctions against an employer that, among other things, failed to conduct any type of investigation into allegations of workplace harassment.

The plaintiff, Wendy Horner, claimed she had been wrongfully dismissed and was entitled to damages in lieu of notice for a period of six months, as well as damages for violation of human rights, intentional infliction of mental suffering, and punitive and aggravated damages. As the defendant had been noted in default, the facts in the statement of claim were deemed admitted and the Court awarded damages in lieu of notice of $10,000. The balance of the claims proceeded to an uncontested trial.

Leading up to the termination, the plaintiff's evidence was that throughout her employment, another employee (the "Employee") harassed her, was intentionally rude to her and "routinely belittled" her, both when they were alone and with others. In December 2016, the plaintiff's evidence was that the Employee deliberately elbowed her as she was attempting to move behind him in a hallway and then subsequently denied elbowing her intentionally, telling her to "take a pill." She reported this to her direct supervisor. Two days later, the plaintiff needed and asked repeatedly to access a drawer that the Employee was standing in front of. The Employee turned to her, visibly angry, and said "can you not wait?" Afterwards, she was upset, told her direct supervisor that she thought that she should go home, to which the response was "saluting her" and saying "goodbye."

On December 22, 2016, the Plaintiff spoke to the owner because she felt her concerns were not being taken seriously. She explained what happened and said she needed "time away." The owner advised that she could take some time off and they would "figure this out in the new year." On December 28, 2016 she received a termination letter, signed by the owner, dated December 22, 2016, stuck into the back door of her house. The termination letter provided that the date of the termination of her employment was December 22, 2016, and that:

Your position is been [sic] terminated with cause as result of your conduct. On December 22, 2016, you were at the retail counter and wanted access to a drawer that your fellow employee... was standing in front of. You lost your temper and angrily ranted against... while he was serving the customer. You have reacted in this unprofessional manner on other occasions and have been reprimanded for it. I cannot and will not condone this type of behaviour.

The Plaintiff, who was being treated for depression prior to termination, was subsequently diagnosed with acute depression, began medication which caused side effects such as nausea and fatigue, had sleep issues, started attending counselling, lost weight, and became reclusive and isolated.

Following Boucher v Wal-Mart Canada Corp., 2014 ONCA 419, the Court awarded $10,000 as punitive damages, stating:

I am satisfied on the evidence that the plaintiff was harassed in the workplace and that the employer, rather than investigating, terminated the plaintiff. As such, I find that the employer's conduct was malicious, oppressive and high-handed and must be deterred.

Further, following Honda Canada Inc. v Keays, 2008 SCC 39, the Court awarded $20,000 in aggravated damages, stating:

In this case, rather than "figuring this out in the new year" as he told the plaintiff he would, the employer immediately terminated the plaintiff's employment without further discussion and delivered a termination letter during the Christmas holidays by sticking a letter in the back door. The manner of the termination was beyond "cold and brusque"; it was cowardly.

Ultimately, the price paid by the employer for terminating the employee in the manner it chose, without conducting an investigation into the alleged harassment, was over $40,000, as the plaintiff was also awarded her legal costs. It would have been far more cost-effective for the employer to have investigated the allegations of harassment and taken appropriate action in the first place. Having a comprehensive policy for the investigation of workplace harassment is critically important. Taking care to make employees aware of applicable policies and procedures, and making sure supervisors and managers follow them, are also key to avoiding the pitfalls suffered by the employer in Horner. Field Law can assist with the formulation and implementation of these policies.

Be sure to stay tuned as Field Law will be offering a workshop on effective organizational response to allegations of misconduct and harassment in the workplace in the fall of 2018.

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.

In association with
Related Topics
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions