Canadian Employment Law Today

6 | June 26, 2019 Cases and Trends Canadian HR Reporter, 2019 2018, Bassanese was subjected to ongoing harassment by a co-worker. On April 17, 2018, Bassanese filed her first complaint with the president of GCNC, stat- ing that she was being constantly harassed by the co-worker, who would yell and scream at her and tell her that she was an idiot and she should be fired. Bassanese requested that GCNC "step in and make sure this never happens again." GCNC wrote back the same day saying they were short-staffed but it would run the matter by its HR person. On May 7 and 8, 2018, Bassanese followed up with GCNC and received a response on May 8 to say that the company had raised the issue with its HR person and would be taking further steps. On May 15, Bassanese wrote to GCNC again and stated, "I am writing to you again to let you know I am at my wit's end and would like some sort of action to take place. I do not deserve to work in an environment where people are allowed to constantly yell and say inappropriate insults to me. Please look into this matter." On May 28, there was a further exchange between the employee and GCNC but no action was taken. On June 21, the co-worker slapped Bassa- nese across her face three times. Bassanese complained to GCNC and filed a police re- port. Rather than address the complaint, GCNC terminated the employee's employ- ment that same day without the provision of notice or compensation for loss of employ- ment benefits. Bassanese commenced an action against both GCNC and the co-worker. She settled outside of court with the co-worker. More than $190,000 in damages In considering Bassanese's termination of employment, Justice Sossin determined the employee was entitled to 19 months' com- mon law notice and payment in lieu of ben- efits in the amount of $129,433.17. In regard to the harassment experienced by the employee, GCNC was ordered to pay $15,000 to Bassanese for assault and bat- tery for the co-worker's slap due to its vi- carious liability. Bassanese was also awarded aggravated damages in the amount of $50,000. Justice Sossin referred to the case of Whiten v. Pilot Insurance Co., in which the Supreme Court of Canada stated that the purpose of ag- gravated damages is to compensate a plain- tiff for the "additional harm caused to the plaintiff's feelings by reprehensible or out- rageous conduct on the part of the defen- dant." Justice Sossin also considered Honda Canada Inc. v. Keays and Boucher v. Wal- Mart Canada Corp. when analyzing the applicability of aggravated damages. In this case, GCNC's ignored the employee's com- plaints, failed to investigate the complaints, and failed to take steps to address the co- worker's behaviour. Taking into account GCNC's neglect of Bassanese's anxiety and frustration as the workplace became more toxic, Justice Sossin determined that aggra- vated damages were warranted. Bassanese also claimed damages for inten- tional infliction of mental suffering and pu- nitive damages but it was found that neither applied in this situation. For the tort of inten- tional infliction of mental suffering, there is a three-part test outlined in Boucher where the plaintiff must prove: • e defendant's conduct was flagrant and outrageous • e defendant's conduct was calculated to harm the plaintiff • e defendant's conduct caused the plain- tiff to suffer a visible and provable illness. Justice Sossin found that while GCNC's conduct met the first prong of the test, the second and third prong had not been met. Specifically, the employee did not submit any evidence of having suffered a visible and proven illness. Regarding Bassanese's claim for punitive damages, Justice Sossin examined the case law surrounding the high standard needed to be met in order to be awarded punitive damages. Justice Sossin referred to Whiten where the purpose of punitive damages is stated to be "retribution, denunciation and deterrence" and that they are awarded in "exceptional cases" where the "miscon- duct… represents a marked departure from ordinary standards of decent behaviour." e objective of punitive damages is to "punish the defendant rather than com- pensate a plaintiff." Justice Sossin also referred to Boucher, which specified that punitive damages need to be "rooted in the employer's own conduct, not in vicarious liability for the actions of the employee." Further, in Keays, the Supreme Court of Canada emphasized that damages for conduct in the manner of dismissal and punitive damages are sepa- rate damages to ensure there is no duplica- tion in damage awards. Taking the above case law into account, Justice Sossin found that, considering the compensatory damages to which the em- ployee is entitled, the small size of GCNC, and the less egregious conduct of GCNC compared to the cases where punitive dam- ages had been awarded, punitive damages were not appropriate in this case. Lessons for employers Employers have a responsibility to ensure that complaints of harassment are properly investigated and are dealt with appropri- ately. Ignoring complaints of harassment in the hopes that they disappear could result in costly damage awards should the mat- ter proceed to trial. While the harassment in this case was quite overt, culminating in an assault, harassment at the workplace can take a variety of forms, all of which must be addressed as required by law, failing which employers can be found to be liable. Although not discussed in the above case, Ontario's Occupational Health and Safety Act, for example, outlines the statutory re- quirements of employers when it comes to workplace violence and harassment, and compliance is mandatory. For more information see: • Bassanese v. German Canadian News Com- pany Limited et al., 2019 ONSC 1343 (Ont. S.C.J.). • Whiten v. Pilot Insurance Co, 2002 SCC 18 (S.C.C.). • Honda Canada Inc. v. Keays, 2008 SCC 39 (S.C.C.). • Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (Ont. C.A.). « from EMPLOYER'S NEGLECT on page 1 Employer ignored employee's complaints and failed to investigate. This warranted aggravated damages. ABOUT THE AUTHOR Aneesha Lewis Aneesha Lewis is a lawyer at Minken Employment Lawyers, an employment law boutique in Markham, Ont. For more information, please visit www.MinkenEmploymentLawyers.com. No evidence of illness caused by employer's conduct

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