The Court of Appeal released an important decision on May 28, 2010 Piresferreira v. Ayotte in which it considered, among other things, negligent infliction of mental suffering in the employment setting.
This was an appeal of the judgment of Aitken, J. and will be on the "Top 10 Employment Law Cases in 2010".
It is a significant decision both for the analysis and the result. Employer's will, generally, be pleased with the outcome, though it may not represent the end of the debate.
Because of the scope of the case, I will pick it up in a few posts starting with this one dealing with the issue of "Negligent Infliction of Mental Suffering" and the availability of this tort in the employment context.
This is, probably, the most important/controversial aspect of the case and employers will be pleased that the Court of Appeal held that this tort was not available (for policy reasons) in the employment context.
The plaintiff, Marta Piresferreira (“Piresferreira”) had been employed by Bell Mobility for 10 years and was 64 years of age. She worked in Ottawa as one of six account managers reporting, since 1997 Piresferreira received good performance reviews, except for 2004 where Richard Ayotte ("Ayotte") indicated that she needed to show improvement. According to the Court of Appeal:
"Ayotte was a critical, demanding, loud and aggressive manager. Other employees corroborated Piresferreira’s testimony that he would yell and swear at employees, had a temper, and would bang his fist on the table to make a point. He had high expectations for the account managers on his team. Other employees described Piresferreira as nervous and sensitive, not taking responsibility for problems but instead blaming others, and not dealing well with criticism – regardless of how it was delivered. The two personalities could hardly be less complementary."
There was discussion of putting Piresferreira on a Performance Improvement Plan ("PIP").
On Thursday, May 12, 2005, Ayotte learned that Piresferreira had failed to arrange a meeting with a client. According to the Court "he yelled and swore at Piresferreira while criticizing her for failing to do her job." There was an exchange between the two during which Perisferreira asked Ayotte to look at an email on her Blackberry in a persistent way, while following Ayotte. The Court noted:
[Ayotte] told her to get away from him and when she held up the Blackberry in front of him, he pushed her on her left shoulder, repeating that she should get away from him. The trial judge found that “[t]he push carried enough force that Piresferreira was pushed approximately a foot. Piresferreira took a step backward and balanced herself against a filing cabinet.”
Ayotte went back to his office and sat at his desk. Piresferreira followed him and said that he should not have pushed her. According to the Court:
Ayotte told her “to get the hell out of his office” and that he was in the process of preparing a PIP regarding her performance. Piresferreira went back to her desk and began to cry. After speaking to colleagues, she collected her things and went home.
After the Events of May 12, 2005
Ayotte delivered the PIP to HR asking them, in his cover memo, for a quick turnaround as he was concerned that "she would go on sick leave as soon as the PIP was presented". He "did not mention the confrontation with Piresferreira earlier that day or that she was upset because he had pushed her".
Piresferreira returned to the office on May 19, 2005 following a scheduled vacation and Ayotte presented her with the PIP he had prepared on May 12. On May 20, 2005, Piresferreira lodged a formal complaint with HR against Ayotte. An investigation was pursued during which:
He admitted pushing her but claimed he was provoked by her persistence in trying to get him to read an email on the Blackberry that she was brandishing in his face. Shiu [general manager to whom Ayotte reported], did not contact Piresferreira to obtain her version of the incident.
HR sent an email to Piresferreira indicating that a meeting had been arranged "for tomorrow morning May 25th at 9h30 to review the performance improvement plan" with HR and Ayotte. Piresferreira tendered a doctor's certificate indicating that she would be off work on May 25 due to “stress leave due to anxiety – dealing with work harassment.”
Though the stated "purpose of the
meeting" was to review the PIP, later in the day, HR sent
letter "that claimed that she had declined to attend a meeting to
to apologize." in which it concluded by noting that "We,
therefore, consider this case closed."
Ayotte was subsequently issued a disciplinary warning for unacceptable behaviour.
Piresferreira never returned to work. She commenced litigation against Ayotte and Bell Mobility on August 11, 2005.
Efforts to Return Piresferreira to Work
Bell Mobility made a number of unsuccessful attempts to return Piresferreira to work.
On March 9, 2006, Piresferreira was advised that Ayotte had been “relocated within the Bell Family” and that she could return to her employment and would not have to work with him. Piresferreira refused as she was informed that Ayotte still "worked out of the Ottawa office in the same capacity".
Piresferreira was under the care of a psychologist and psychiatrist who diagnosed her with post-traumatic stress and a major depressive disorder with symptoms of anxiety respectively. In terms of causation, the psychologist's opinion was that the "symptoms related to the assault and what she perceived as a betrayal and injustice on the part of Bell Mobility" and the psychiatrist opinion was that the "depression and anxiety were triggered by Ayotte’s physical assault, followed by his failure to apologize and then Bell Mobility’s failure to apologize and take concrete steps to remove Ayotte from a position of authority and supervision over Piresferreira".
The Trial judge found that Ayotte and Bell Mobility were jointly and severally liable for the torts of battery, intentional infliction of mental suffering, and negligent infliction of mental suffering.
With respect to the tort of intentional infliction of mental suffering, the trial judge set out the elements of this tort as stated in Prinzo v. Baycrest Centre for Geriatric Care:
(1) flagrant or outrageous conduct;
(2) calculated to produce harm; and
(3) resulting in a visible and provable illness.
Next, the trial judge found Ayotte and Bell Mobility both liable for the tort she described as "Negligent Infliction of Emotional Distress, Mental Suffering, Nervous Shock and/or Psycho-traumatic Disability". She found that Bell Mobility as Piresferreira's employer and Ayotte as her immediate supervisor "owed Piresferreira a duty of care to ensure that Piresferreira was working in a safe and harassment-free environment without verbal abuse, intimidation or physical assault, all in accordance with Bell Mobility's Code of Business Conduct."
The Trial judge found that Ayotte breached the duty of care by "by yelling and swearing at Piresferreira particularly during 2004 and 2005, and including on May 12, 2005 when he berated her in front of other employees, physically assaulted her and added insult to injury by, without apologizing, issuing a PIP." With respect to her employer, the judge held that they breached their duty to Piresferreira because, according to the Court of Appeal:
... neither HR nor [the general manager to whom Ayotte reported] contacted Piresferreira to express Bell Mobility's concern as to how she had been treated, to apologize on Bell Mobility's behalf, and to see how she was doing. Instead, Bell Mobility's communications conveyed to Piresferreira that its priority was the PIP not Ayotte's behaviour. The disciplinary measures that Bell Mobility told Piresferreira it would impose on Ayotte were inappropriately mild and ignored Ayotte's failure to apologize to Piresferreira, his use of a PIP to intimidate her, his failure to report the assault and the immediate imposition of a PIP. Moreover, no one from Bell Mobility contacted Piresferreira to get her input on what steps could be taken to ensure that she would feel physically and emotionally safe at her workplace in the future.
The trial judge also made a number of other damages awards.
The Court of Appeal
Negligent Infliction of Mental Suffering
Though the issue was not raised at trial, the Court of Appeal nonetheless considered whether this tort existed in an employment context. The Court of Appeal noted that "the argument raises a pure question of law of broad importance in employment law." No kidding, this would, if allowed to stand, significantly open the door to a host of claims in the employment setting (recently, the cases show a judicial reluctance to broaden these types of claims).
The Trial judge found that the duty of care for the tort rested squarely on the contractual relationship between the parties (the Code of Conduct). Even assuming that the Code of Conduct formed part of the employment contract, the Court of Appeal held:
- "a breach of a contractual duty cannot be the basis for the recognition of a common law tort." and
- "there must be a common law duty of care that would exist even in the absence of the specific contractual term which created the corresponding contractual obligation."
- The trial judge erred in basing the standard of care on a contractual obligation.
The Court then went on to consider the Anns v. Merton London Borough Council case for determining whether a duty of care arises which:
.... involves asking first whether the relationship between the plaintiff and the defendant is sufficiently close or "proximate" to render damages reasonably foreseeable and justify the imposition of a duty of care, and second, whether there are countervailing policy considerations why a duty of care should be limited or not recognized.
The Court of Appeal held that there was a sufficiently close relationship between an employer and employee and that the damages suffered were reasonable foreseeable. This was probably not surprising given some earlier cases.
It then turned to whether there were policy considerations that would foreclose the recognition of a duty of care.
The Court found that they did.
The Court stated that "the Supreme Court has already strongly intimated that the recognition of such a tort in the employment context is better left to the legislature." And further:
A general duty to take care to shield an employee during the entire course of his or her employment from acts in the workplace that might cause mental suffering strikes me as far more expansive than a duty to act fairly and in good faith during just the termination process. The duty rejected in Wallace would have applied only at the time of termination and to the manner of termination. The duty put forward in this case would apply in the course of employment as well as to its termination. The general duty postulated would require employers to take care to shield employees from the acts of other employees that might cause mental suffering.
The Court then considered whether the tort added anything to the existing remedies available to an employee.
If the employee were terminated, he or she could claim damages for mental distress under the framework the Supreme Court has set out in Keays v. Honda Canada. Accordingly, the Court held that the "recognition of the tort is not necessary".
If an employee is not terminated outright, he or she may advance a claim based on the offensive conduct and allege that he or she has been constructively dismissed (see Shah v. Xerox Canada Ltd.). The Court held that it is:
... often called upon to review the work performance of employees and the content and manner of their supervision in dismissal cases. It is unnecessary and undesirable to expand the court's involvement in such questions. It is unnecessary because if the employees are sufficiently aggrieved, they can claim constructive dismissal. It is undesirable because it would be a considerable intrusion by the courts into the workplace, it has a real potential to constrain efforts to achieve increased efficiencies, and the postulated duty of care is so general and broad it could apply indeterminately.
The Court held that the "tort of negligent infliction of mental suffering as the tort is not available in the employment context".
In reaching this conclusion, the Court was clearly concerned with the repercussions of allowing the Trial judges decision to stand on this point. Leaving aside the practical issues, the policy considerations were paramount in the Court's reasoning.
Employers can, for the moment, breathe a sigh of relief, though this may not be the end of the matter if leave to appeal to the Supreme Court of Canada is sought.