Damages arising from mental distress in the workplace can be significant. Case after case has shown some employers are slow to catch on to the pitfalls of abusing employees, whether through sexual harassment, bullying or otherwise.
Courts can award damages for intentional or negligent infliction of mental suffering. They can further punish employers with aggravated and punitive damages. And if the employer behaves badly in how it terminates a worker, a court can extend reasonable notice periods in the form of Wallace damages.
A recent case out of British Columbia highlights yet another reason for employers to clamp down on harassment — the loss of past and future wages. A female RCMP officer who was harassed, suffered emotional problems and eventually quit the force was awarded nearly $1 million, the bulk of it for lost wages, after an “old-school” RCMP detachment commander made her working life miserable.
Nancy Sulz joined the Mounties in 1988. She was posted to the Merritt, B.C., detachment as a general duty police officer. She had a good working relationship with her first detachment commander. He was harsh, critical, loud and intimidating, but was fair and supportive. Her career as a police officer was off to a good start, and she enjoyed the work. But things changed in 1994 when Staff Sgt. Smith became the detachment commander.
Sulz and her husband planned to have two children. Their first child was born in April 1993. In the spring of 1994, she was surprised to find she was pregnant again. She continued with her usual duties during the second pregnancy until July, when she was placed on light duties. The first serious incident occurred when she was assigned to do “self-audits” as part of her light duties. These audits involved randomly checking files to determine whether officers had complied with procedures. She had never done this type of work before and asked Smith for help. She said he responded with profanity, and told her to go look it up in the books.
The next incident occurred in October 1994 shortly after she went on medical leave. She went on a trip with her family and a fellow RCMP member to go shopping in Bellingham, Wash. This trip irritated Smith and Sgt. Angel, another senior member of the detachment. They were of the view RCMP policy required Sulz to get permission before she left. Their basic thinking was: “If she was well enough to travel, she was well enough to accept light duty.” When she returned, she said Angel told her she had done something “stupid,” that she would have to pay the price and work three times as hard as anyone else to regain his trust. (At trial, the RCMP said the policy of not leaving a duty area without the commander’s permission was not well known and had since been discontinued.)
Smith’s stinging note
Shortly after she had her second child, Sulz received a message from one of the detachment clerks. Essentially, Smith said she had to come down to the station to sign some forms, otherwise Sulz wouldn’t get paid.
Sulz said she went down to the detachment and Smith made her wait 15 minutes and was rude to her when she asked for help with the forms. She said he threw a piece of paper at her with the name and telephone number of a pay clerk who might help her. Sulz phoned the RCMP’s pay and compensation department and was told she would not lose any pay and that it was customary for the detachment commander to fill in the forms.
She completed the forms to the best of her ability and sent them to the detachment office for Smith to finish. Later that day, she received a call from a staff member who said Smith had told her to read a note which partially read:
“Yes. I could fill these out for you should I so desire. But I don’t, so I won’t. As I told you, it is your money and if you don’t get them in ASAP, you don’t get paid, so it is up to you. I have never been at any detachment … where the detachment fills out the appropriate forms for you, and then you just sign them. I can assure you that this detachment won’t do it. You’re a grown, married woman with two children with six years’ service in the mounted police and making over $50,000 a year. So I think it is time you took on the responsibility of getting your money work done yourself.”
Sulz was upset not only at the tone of the letter, but the fact it was read to her by a staff member who was working in the general office area where she could be overheard. Sulz also heard a lot of rumours of what was said in the detachment about her by Smith and Angel, suggesting she was afraid of the dark and that she got pregnant to deliberately screw the system. The court said this evidence was hearsay and not admissible, but it did play a role in assessing Sulz’s perception of what was happening and why she felt demeaned and belittled.
Return from maternity leave
Sulz returned from maternity leave on June 15, 1995. She said the derogatory comments persisted. A seminal point for her came when she learned auxiliary constables had been told not to ride with her. She asked one of the constables about this, and he said Angel had told him not to ride with Sulz because she was scared and had to learn how to deal with matters without someone standing at her side. She concluded from this, and other lesser incidents, that she was losing the trust of her fellow officers.
In mid-1995 she contacted her divisional representative, Staff Sgt. Humphries, and gave him a detailed written description of what was happening. Humphries arranged a meeting between himself, Sulz and an RCMP inspector. The inspector reviewed the written statement Sulz had given to Humphries and told her he viewed the situation as a very serious one. The inspector decided to meet with Smith and Angel to discuss the problems.
Physical, mental health fading
By this time, Sulz’s physical and mental health had deteriorated. She had lost her appetite, was 20 pounds underweight, was unable to sleep properly and was constantly on the verge of tears.
On June 27, 1995, her doctor told her to go on sick leave. On the same day, the inspector phoned her at home and told her he had spoken with Smith and the matter had been resolved. Sulz said she was concerned about her supervisors’ reaction, but he told her not to worry.
But the court said Sulz had reason to worry. The meeting between the inspector and her supervisors was tense and angry. Smith returned to the detachment in such an irate state of mind that another officer warned Sulz to go out in a police car and stay away from the detachment during her shift on June 28.
She stayed away for a bit, but eventually returned to meet with Smith in an attempt to clear the air. But Smith was busy and Sulz had a hard time containing her emotions. She handed in the doctor’s note and went home.
The psychiatrist’s opinion
Around this time, Sulz consulted a ¬psychiatrist under contract with the RCMP. He suggested she return to work part-time but she chose to work full-time because she wanted to try to normalize the work situation.
But she felt completely ostracized by Smith, who avoided any interaction with her. She felt her relationship with other officers had deteriorated. She asked to be transferred to the highway patrol, an autonomous unit that operated in the Merritt detachment. She was told, by Smith via a letter, that there were no open positions with the highway patrol. The letter went on to criticize her policing abilities and pointed out she did not have a great record or aptitude for traffic enforcement. This letter was another blow to Sulz, especially since it was copied to the officer in charge of the Merritt highway patrol and written on a memo that became part of her file.
Another conflict arose with Sulz and another sergeant after she was ordered, against her will, to conduct what proved to be an unlawful search of a residence. As a result, she had to endure stinging cross examination in court. Another conflict arose during a sexual assault investigation Sulz had commenced with respect to two children. During their discussion of the case, he told her to, “think like a cop and not like a mother.”
On Feb. 4, 1996, the psychiatrist diagnosed Sulz as having a major depressive disorder. Her weight hovered around 100 pounds, she was not sleeping well, had difficulty remembering things and was in poor mental and physical health. The psychiatrist told Sulz to take sick leave and he telephoned the detachment himself to notify her superiors.
The psychiatrist then received an angry phone call from Smith, who asked for details of Sulz’s medical condition. Smith questioned his ability to do his job and suggested Sulz had manipulated the doctor. He also told him she might have a drug dependency problem.
It was at this time Sulz underwent a routine pregnancy test before being put on anti-depressants. She was shocked to learn she was pregnant for the third time. Her husband had a vasectomy, but it had failed. That baby was born in September 1996.
In May 1997 the RCMP sent Sulz to Kelowna to be examined by another psychiatrist. He corroborated the opinions and diagnoses of the other doctor.
The inspector looking into Sulz’s case broke her complaints into 48 allegations. He eventually concluded five were founded. But no disciplinary action could be taken against Smith because he had retired by that point.
This gave Sulz some sense of vindication, but it did not cure her depression. She remained on medical leave. In early 1999 the RCMP asked Sulz if she would consider a medical discharge. It pointed out that if it initiated the medical discharge, it could take years for it to be carried out and, in the meantime, the detachment would be short staffed. If Sulz initiated the process, that could be avoided. The RCMP told her she was entitled to superannuation commensurate with her 10 years of service and recommended she apply for a Veterans Affairs disability pension and disability insurance benefits from a private insurer. Sulz agreed to initiate a medical discharge on the condition it wouldn’t interfere with her lawsuit. She ceased to be a member of the RCMP on March 8, 2000. Despite extensive psychotherapy and medication, she has not recovered from her depression. She remains unable to cope with any form of regular employment, the court said.
For more information see:
• Sulz v. Canada (Attorney General), 2006 CarswellBC 141 (B.C. S.C.)
How the court arrived at a figure of $950,000
In awarding $950,000, the B.C. Supreme Court looked at a number of factors in this case. It declined to award damages for intentional infliction of mental suffering because, though Smith’s conduct was inappropriate, it was not flagrant or extreme enough to warrant damages. But it did award damages for negligent infliction of mental suffering and lost wages.
•Negligent infliction of mental suffering. A successful claim of negligence must demonstrate that the defendant owed the plaintiff a duty of care, that the defendant breached that duty and damages or injury resulted from that breach. Smith, as the officer in charge of the Merritt detachment and Sulz’s commanding officer, owed a duty of care to her, the court said.
“It was his duty to ensure that she could work in a harassment-free environment, as is required by various anti-harassment policies that the RCMP has in place,” the court said. “There is no question that Smith breached that duty.”
The court said there was evidence he was prone to angry outbursts, particularly when it came to Sulz. It said he did little to curb his temper or to prevent rumours that were circulating about Sulz, even though he ought to have known he was causing serious emotional problems for her at a time when she was facing significant personal pressures due to her pregnancies.
The court said, prior to her problems at work, Sulz was a healthy, capable woman. Even if only a portion of Sulz’s accusations were accurate, the court said she “has described what amounts to a rather serious psychologically toxic work environment to an extent which would likely cause many or even most people in similar circumstances to experience substantial psychological symptoms as a result.”
Therefore, Sulz had established that Smith’s breach of the duty of care caused her serious psychological harm.
Based on a review of other cases, the court settled on a figure of $125,000 for general damages.
•Lost wages. It then looked at her past wage loss. After being discharged, Sulz received money from a Veterans Affairs pension, a superannuation pension and disability benefits from a private insurer. It said she contributed to and was entitled to the superannuation pension. She also contributed to the disability premiums, so the only income the court took into account was the Veterans Affairs pension. It calculated her past wage loss to be $225,000.
A report pegged her future income at $926,652 if she worked until 57 and more than $1 million if she worked until 60. It valued her Veterans Affairs pension at $278,109. The court said it was doubtful, given her circumstances with three young children, Sulz would have continued and finished her career with the RCMP even if she had not run into problems. However, she likely would have had a career elsewhere. But because of the devastating effect of the harassment, that was more difficult now. It pegged damages for future income loss at $600,000 for a total of $950,000. It declined to award punitive damages.