April 1, 2019

By: Mackenzie Irwin

As my colleague reported earlier last week, the Ontario Court of Appeal recently shut down the tort of harassment in Merrifield v Canada, (Merrifield). The Ontario Court of Appeal based their decision to eliminate the tort of harassment largely on the availability of other remedies to address the alleged harassing conduct. In particular, the Court pointed to the availability of the tort of intentional infliction of mental suffering (“IIMS”). In an earlier article, I outlined the tort of IIMS and how challenging it is to establish.

Just three days prior to the release of Merrifield, the Ontario Court of Appeal released its decision in Colistro v Tbaytel, (“Colistro”), which solidified the high threshold that Plaintiffs must meet in order to establish the tort of IIMS.

In these two back to back decisions, has the Court made it too difficult for Plaintiffs to recover damages for harassment in the workplace?

As it stands, employees are barred from claiming for the tort of harassment (see Merrifield), barred from claiming for negligent infliction of mental suffering (see Piresferreira v Ayotte) (“Piresferreira), but can attempt to recover damages in a claim for IIMS. However, in Colistro, the Ontario Court of Appeal has confirmed that the test for IIMS is intentionally difficult to establish.

The Colistro Decision

In this case, Ms. Colistro had worked for Tbaytel and its predecessor for almost 20 years. To her shock, the company announced that they were rehiring Steve Benoit, an executive who had been dismissed eleven years prior, in part due to allegations that he had sexually harassed Ms. Colistro when he worked as her immediate supervisor.

Tbaytel offered to accommodate Ms. Colistro by transferring her to an equivalent position in an adjacent building, however, Ms. Colistro would not accept anything less than Tbaytel not proceeding with hiring Mr. Benoit.

Ms. Colistro was unable to return to work, and was diagnosed with PTSD and major depressive disorder. She filed a claim for damages for intentional infliction of mental suffering and constructive dismissal, in addition to moral damages.

The trial judge dismissed Ms. Colistro’s claim for intentional infliction of mental suffering and awarded her damages for wrongful dismissal in the form of 12 months reasonable notice. The trial judge also awarded Ms. Colistro $100,000 in Honda (moral) damages.

The Ontario Court of Appeal affirmed that the three elements of the tort of IIMS are that the defendant’s conduct must be:

  1. Flagrant or outrageous (objective);
  2. Calculated to produce harm (subjective); and
  3. Resulting in a visible and provable illness (objective).

Calculated to Produce Harm

Ms. Colistro’s claim failed on the second branch of the test: calculated to produce harm.

This branch is subjective, and is “established where the actor desires to produce the consequences that follow from the act, or if the consequences are known to be substantially certain to follow” (Prinzo v Baycrest Centre for Geriatric Care) (Prinzo”). The Court noted that this is “an important limiting element of the tort and distinguishes it from actions in negligence.”

This second element is not satisfied by evidence of foreseeability or reckless disregard (Piresferreira). The extent of the harm suffered need not be anticipated, but the kind of harm must have been intended or known to be substantially certain to follow.

The Court of Appeal found that the trial judge erred in law to the extent that he required Tbaytel to have known of the exact kind of harm that resulted, down to the particular psychiatric diagnosis.

However, when a Plaintiff relies on the substantially certain to follow branch of the second element of the IIMS test, more than evidence of foreseeability or reckless disregard is required. The bar is necessarily high if a Defendant is to be liable for all the consequences of an intentional wrongful act.

In this case, the Court rest its finding that it was not reasonable to find that Tbaytel had subjective knowledge that psychological injury was substantially certain to follow on evidence that Tbaytel sought to accommodate Ms. Colistro, ostensibly for the purpose of avoiding the imposition of mental suffering upon her. The Court noted that this evidence might support an inference that serious psychological injury was reasonably foreseeable, but this is not sufficient to ground an intentional tort.

The Court dismissed Ms. Colistro’s appeal, and relied on the Galea v Walmart decision to uphold the trial judge’s award of $100,000 for moral damages, and $14,082 in damages for wrongful dismissal. The Galea v Walmart decision was argued by our Owner and Founder, Ms. Natalie C. MacDonald, and is the leading case that sets the record for the highest award of moral and punitive damages.

Costs Order

It is important to note that the trial judge awarded costs against Ms. Colistro in the amount of $200,000 because the damages she claimed were substantially higher than the result she achieved at trial. Therefore the court held that the Defendants were the substantially successful party to the litigation. This costs order warns against pleading high damage awards, for the courts may take this into consideration in their decision to award costs if the result achieved is substantially lower than what was c