Canadian Employment Law Today

6 | December 7, 2016 Canadian HR Reporter, a Thomson Reuters business 2016 would sometimes call Strudwick "stupid" for not understanding. e supervisor also gave Strudwick grief for not answering the telephone. Applied Consumer's general manager — who was running the business during the owner's medical absence — demanded that Strudwick provide a doctor's note re- garding the exact cause of her hearing loss. Since doctors were unable to precisely identify the cause, Strudwick provided her hearing test results. e general manager responded by saying she was "too cheap" to get a doctor's note and her supervisor sug- gested that she should "just quit" and "go on disability." Strudwick asked if the Canadian Hear- ing Society could come to the office to perform an accommodation assessment of her workstation, but Applied Consumer's general manager refused. He also denied her access to important information that was only available in print, permission to use a special telephone that Strudwick was willing to pay for at her own expense, a vi- sual fire alarm she also offered to pay for herself, use of a special vibrating and light- activated pager, and permission to bring an assistance dog to work — though the owner often brought his dog to work. In addition, Strudwick asked to turn her desk around so she could see people as they approached, but was rebuffed on this as well. Termination carried out in front of co-workers Strudwick was a member of the company's Toastmasters Club and attended a meeting on May 26, 2011. She helped select the top- ics but didn't speak. e next day, the gen- eral manager confronted her about a "stunt" at the Toastmasters Club meeting, calling her "a goddamned fool" in front of other employees. With the supervisor and an- other employee nearby, he then terminated Strudwick for insubordination and wilful misconduct. e general manager gave Strudwick a termination letter, a cheque for three months' pay, and a release form. Strudwick refused to sign the release, so the general manager took the cheque back, escorted her to her desk to collect her belongings, and marched her out of the building in front of other employees. Strudwick sought help from Labour Com- munity Services of Peel Region to obtain her outstanding pay, and Applied Consumer sent a document to Employment Services of Canada indicating she had been fired for insubordination and wilful misconduct. As a result of this document, Strudwick's ability to collect employment insurance payments was delayed. A short time later, Strudwick was diag- nosed with an adjustment disorder with mixed anxiety and a depressed mood result- ing from the way Applied Consumer treated her. She had to undergo extensive cognitive behavioural therapy and filed a wrongful dismissal suit against Applied Consumer, claiming $240,000 in damages in her state- ment of claim. Applied Consumer was found liable for wrongful dismissal damages and was ordered to pay Strudwick $113,782.79 in damages — including 24 months' pay in lieu of notice, $20,000 for discrimination, and almost $19,000 for intentional inflic- tion of mental distress — plus $40,000 in costs. Strudwick launched an appeal, arguing that the company's "extraordinarily egre- gious conduct" warranted higher damages of more than $1 million. She argued that because of her age and disability, she faced "chronic unemployment" and should receive pay in lieu of notice to age 65 — a total of 125 months from her dismissal and worth more than $350,000. She also claimed the compa- ny's human rights violations and the manner of dismissal deserved higher amounts of ag- gravated damages. e Court of Appeal noted that Strud- wick's original statement of claim demanded $240,000 in damages, so that was the maxi- mum that could be awarded, plus compen- sation for lost benefits and costs. However, the appeal court agreed that the damages for Applied Consumer's human rights violations were too low. ough the company's conduct had been recognized as "unconscionable," the effect on Strudwick hadn't been considered. Lasting effects of employer's conduct and manner of dismissal e appeal court found Strudwick suffered from anxiety, depression, and humiliation because of the harassment she suffered at work, the company's victimization of her was prolonged, and the company failed to accommodate her disability. In addition, the general manager both participated in harassment and failed to address the ha- rassment perpetrated by the supervisor, creating a poisoned work environment, said the court. "Applied Consumer's conduct was not a one-off. Applied Consumer refused every one of Ms. Strudwick's requests for accom- modation, even those she offered to pay for herself," said the appeal court. "It then took steps to exacerbate the impact of her deafness on her ability to perform her job to force her to resign. When that did not work, the company fired her for a frivolous and particularly offensive reason and in a manner intended to cause maximum em- barrassment." e appeal court increased the damages for company's human rights violation to $40,000 and the amount for intentional in- fliction of mental distress to $35,294 to re- flect the true cost of Strudwick's cognitive behavioural therapy and loss of enjoyment of life. e appeal court also disagreed with the original determination that aggravated dam- ages were covered in the other awards for wrongful dismissal and intentional infliction of mental distress. Given there was "last- ing psychological harm" to Strudwick from Applied Consumer's conduct, aggravated damages of $70,000 were warranted, minus $8,400 that the lower court had awarded for the manner of dismissal to prevent overlap, the appeal court said. e total compensatory damages — $192,850.79 to this point — would have a sig- nificant impact on Applied Consumer, not- ed the appeal court. However, it found these were still "insufficient to accomplish the ob- jectives of retribution, denunciation and de- terrence" for Applied Consumer's egregious conduct that extended over months and years. e lower court had awarded $15,000 in punitive damages and Strudwick's ap- peal requested $150,000. ough the appeal court found Strudwick's request was too much in light of the compensatory damages, it raised the amount of punitive damages to $55,000. e appeal court's increases to compen- satory, aggravated, and punitive damages resulted in a total award of $241,800.87. As the court previously stated, it couldn't award more than Strudwick's original statement of claim, so it reduced the total slightly to the maximum of $240,000, to which was added $6,049.92 for the cost of replacing benefits and $20,000 in costs. e court also noted that as Strudwick's employer, Applied Consumer was jointly and severally liable for the actions of its em- ployees, the general manager and the super- visor. For more information see: • Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 CarswellOnt 10413 (Ont. C.A.). Employer refused worker's accommodation requests « from HARASSED on page 1 The supervisor suggested the newly-blind employee should 'just quit' and 'go on disability.'

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