Canada: Featured Case: Doyle v Zochem Et Al. 2016 ONSC 3188

Last Updated: December 21 2018
Article by Martin Smith

Martin Smith, the managing partner of the Ottawa office of McCague Borlack LLP, with the able assistance of Desneiges Mitchell and Rachel Leck, associates, successfully reduced a multimillion-dollar wrongful dismissal claim brought by a terminated plaintiff. In Doyle v Zochem et al., 2016 ONSC 3188, the plaintiff, Melissa Doyle ("Ms. Doyle"), brought a claim against her employer, Zochem, who terminated her ostensibly due to poor work performance. Ms. Doyle not only claimed damages for wrongful dismissal, but also claimed that persistent sexual harassment by employees combined with a botched harassment investigation exacerbated her latent problems with depression, causing her to suffer a significant psychological injury as a result. Accordingly, she further claimed aggravated damages, a breach of the Ontario Human Rights Code, and the tort of intentional infliction of emotional distress, amongst others.

This case demonstrates an emerging trend of terminated employees to frame their wrongful dismissal suits similar to a personal injury case. This trial included a cornucopia of expert witnesses brought by the plaintiff – notably extending the length of the trial from three to six weeks – in an attempt to prove lasting psychological damage for the plaintiff as a result of the termination.

The lawyers at McCague Borlack LLP successfully argued that the test for the tort of intentional infliction of emotional distress had not been met by the plaintiff and that the plaintiff's claims were unsubstantiated. Particularly, it was held by the court that the employees involved did not intend to inflict emotional distress on Ms. Doyle. This successful argument, in addition to others given throughout trial, reduced a multi-million dollar claim to a fraction of the original pleaded amount.


Ms. Doyle was, at the time of trial, a 48-year-old, single and well-educated individual. She holds an honours degree from the University of Windsor and had also attended Wayne State University in Detroit, Michigan. Doyle had over 20 years of experience supervising factory workers and worked for a significant period at Chrysler prior to working for Zochem. She started working at Zochem, a zinc oxide manufacturer and was quickly given a significant amount of responsibility. Particularly, her responsibilities were to supervise a group of all male workers at the plant. At that time, she claimed she was subjected to workplace harassment from the workers.


Ms. Doyle claimed a cornucopia of damages for the termination. Particularly, she claimed damages for wrongful termination, inadequate notice, and a lack of sufficient compensation in lieu of notice. Moreover, Ms. Doyle pleaded the tort of intentional infliction of emotional distress due to the trauma she suffered throughout the termination process. She also asked for payment for previously denied short-term and long-term disability payments in addition to an Ontario Human Rights Code complaint. Finally, she pleaded aggravated damages.

These claims added up to a multi-million dollar lawsuit, as against Zochem.


While it was held that Zochem improperly terminated Ms. Doyle, the additional tort claims were all dismissed. Nevertheless, the court also held that her bona fide claims deserved a damages award, but nowhere near the amounts sought by her counsel at trial. A significant amount of the six-week trial focused on the opinions of experts as to her psychological state and the resulting evidence to support the tort claim of intentional infliction of emotional distress. In the end, it was all for naught, as while the court found sympathy with the plaintiff's psychological issues, the court determined that the high bar to the test was not met and this tort claim was dismissed.

Intentional Infliction of Mental Distress / Personal Claim

Ms. Doyle claimed that Ms. Wrench, the Assistant General Manager at Zochem, should be personally held liable for intentionally inflicting mental distress on her due to the termination. Through the advocacy of the lawyers at McCague Borlack LLP, the court dismissed the personal claim against Ms. Wrench.

The tort of intentional infliction of mental distress derives from English law. It is established where (1) flagrant or outrageous conduct; (2) calculated to produce harm; (3) results in a visible and provable illness. The tort has been previously awarded where employers sexually harassed an employee while having knowledge of the individual's fragile psychological state.

In this case, the court found difficulty with the second element, where the actions of the individual are intended to produce harm. This element has a difficult and high bar to prove. The court held that while there was persistent harassment by Mr. Rogers, and Ms. Wrench had knowledge of Ms. Doyle's depression, the issue of whether they should have realized the detrimental effect of the termination for her depression versus whether they would have been aware and nonetheless did those actions, proved to be problematic and fatal to the plaintiff's claim in this regard.

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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