Canadian Employment Law Today

June 12, 2019

Focuses on human resources law from a business perspective, featuring news and cases from the courts, in-depth articles on legal trends and insights from top employment lawyers across Canada.

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6 | June 12, 2019 Cases and Trends Canadian HR Reporter, 2019 the supervisor, but didn't interview him di- rectly. It ultimately decided to terminate the supervisor's employment in 1996 because of the complaints but didn't use them as an of- ficial reason, instead providing severance for a without-cause termination. e worker continued to work in her po- sition through the transition of Tbaytel as- suming the responsibility for under Bay's telecommunication services — eventually becoming the executive assistant to the ex- ecutive vice-president of operations — with- out event until late January 2007. at was when Tbaytel made an announcement that shocked and upset the worker. On Jan. 29, Tbaytel announced that it had hired a new vice-president of business con- sumer markets. at new vice-president was the worker's former supervisor — the one who had been fired 11 years earlier because of sexual harassment allegations from her and others — and his new position would mean she would encounter him frequently. e worker immediately told her boss she wasn't feeling well and went home. Employer informed of new hire's history Later that day, the worker and her husband met with her boss and Tbaytel's vice-pres- ident of human resources to tell them the new hire had been terminated by the city in 1996 for sexually harassing her and other employees. ree days later, she emailed her boss to say she was "not eating or sleeping, was vomiting and on the verge of a nervous breakdown." She later provided a doctor's note advising she would be off work due to stress until March 1. e effective date of the new hire wasn't until Feb. 19 and his employment was sub- ject to a probationary term, but Tbaytel de- cided to go ahead with it. Tbaytel's president and CEO wrote to the worker that he took her "accusations of 11-odd years ago seri- ously and will discuss appropriate behav- iour" with the new hire, but would proceed. Tbaytel offered to accommodate the worker by transferring her to an equivalent position in an adjacent building, but the worker re- fused. She insisted Tbaytel should not hire the man. e worker was diagnosed with post- traumatic stress disorder (PTSD) and didn't return to work. She sued Tbaytel and the city for the tort of intentional infliction of mental suffering as well as wrongful dismissal. e trial court dismissed the claim for in- tentional infliction of mental suffering, find- ing two of three elements of the tort were met — Tbaytel's decision to proceed with hiring the new VP after learning of his his- tory was "flagrant and outrageous conduct" and it resulted in a "visible and provable ill- ness — PTSD and depression. However, the trial court found Tbaytel's conduct didn't meet the third necessary el- ement for the tort — that it was calculated to produce harm. While Tbaytel knew the worker was upset, unable to work, and ex- periencing significant symptoms, the court didn't think there was enough evidence to prove Tbaytel knew its conduct would cause the worker's PTSD and depression. No intentional infliction of suffering, but constructive dismissal Despite finding no intention on Tbaytel's part to inflict mental suffering, the trial court did find Tbaytel constructively dis- missed the worker. Tbaytel and the city were jointly ordered to pay the worker dam- ages equal to 12 months' notice, less what the worker had already received through short-term salary continuance and long- term disability benefits. In addition to the notice award, the two employers were also ordered to pay the worker $100,000 in dam- ages for bad-faith conduct in the manner of dismissal. However, because the worker's claim for a large amount of damages for in- tentional infliction of mental suffering was unsuccessful, she was found liable for the employers' legal costs — $200,000. e worker appealed the dismissal of her claim for intentional infliction of mental suffering and the costs award against her, arguing the trial court erred in requiring that Tbaytel should know the exact kind of harm its conduct would cause when it ought to have known and did know it was causing harm to her. Tbaytel and the city cross-appealed the finding of constructive dismissal. e Ontario Court of Appeal agreed that the trial court erred in requiring that Tbay- tel know the exact kind of harm its conduct would cause, but still upheld the finding that element of the intentional mental suffer- ing test wasn't met. It noted that intention to cause harm is different from negligence and there is a high bar to prove it. e appeal court found the evidence didn't support that the employer's intention was to cause harm. e appeal court found Tbaytel tried to accommodate the worker by transferring her — "ostensibly for the purpose of avoiding the imposition of mental suffering upon her." e court noted that while this accommoda- tion offer wasn't acceptable to the worker, it could have been acceptable to someone else in her position. While some sort of psycho- logical injury may have been foreseeable, it wasn't enough to prove an intentional tort that Tbaytel knew the worker's PTSD and depression "was substantially certain to oc- cur," said the court. e appeal court also rejected the cross- appeal by Tbaytel and the city, finding the trial court's determination of constructive dismissal was reasonable. Tbaytel knew the new hire had sexually harassed the worker and had been fired because of it and the worker was shocked and upset by the rehir- ing, but Tbaytel went forward with it. e appeal court agreed with the trial court that "a reasonable person would see the (work- er's) continued employment as intolerable under such circumstances." Given it upheld the trial court's dismissal of the worker's claim for damages for in- tentional infliction of mental suffering, the Court of Appeal also upheld the costs award against the worker. Tbaytel and the city remained liable for $114,000 in damages for constructively dismissing the worker, while the worker remained on the hook for $200,000 in legal costs for the employers. For more information see: • Colistro v. Tbaytel, 2019 ONCA 197 (Ont. C.A.). « from REHIRING on page 1 Employment law blog Canadian Employment Law Today invites you to check out its employment law blog, where editor Jeffrey R. Smith discusses recent cases and developments in employment law. The blog features topics such as reprisals for wrongful dismissal suits, workplace violence for healthcare workers, and the discriminating implications of uninformed assumptions. You can view the blog at Employer didn't intend to cause worker's PTSD or depression

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