Harassed employee eyes bigger damage award after dismissal

Employer refused accommodation requests and management created poisoned work environment for worker who lost hearing

The Ontario Court of Appeal has more than doubled the total damages an employer must pay for harassment, discrimination, and wrongful dismissal of an employee with a disability due to the egregious nature of its conduct that took place over an extended period of time.

Vicky Strudwick was employed for 15 years with Applied Consumer and Clinical Evaluations, a company that recruits people to participate in focus groups based in Mississauga, Ont. In October 2010, Strudwick became completely deaf due to reasons which weren’t clear to doctors, though it was believed to be a virus.

Strudwick’s supervisor began making work difficult for her, often giving her instructions in a way that prevented Strudwick from reading her lips. After doing this, she would sometimes call Strudwick “stupid” for not understanding. The 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 regarding the exact cause of her hearing loss. Since doctors were unable to precisely identify the cause, Strudwick provided her hearing test results. The general manager responded by saying she was “too cheap” to get a doctor’s note and her supervisor suggested that she should “just quit” and “go on disability.”

Strudwick asked if the Canadian Hearing 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 visual 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 topics but didn’t speak. The next day, the general 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 another employee nearby, he then terminated Strudwick for insubordination and wilful misconduct.

The 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 Community 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 diagnosed with an adjustment disorder with mixed anxiety and a depressed mood resulting 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 statement 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 infliction of mental distress — plus $40,000 in costs.

Strudwick launched an appeal, arguing that the company’s “extraordinarily egregious 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 company’s human rights violations and the manner of dismissal deserved higher amounts of aggravated damages.

The Court of Appeal noted that Strudwick’s original statement of claim demanded $240,000 in damages, so that was the maximum that could be awarded, plus compensation for lost benefits and costs.

However, the appeal court agreed that the damages for Applied Consumer’s human rights violations were too low. Though 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

The 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 harassment 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 accommodation, 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 embarrassment.”

The appeal court increased the damages for company’s human rights violation to $40,000 and the amount for intentional infliction of mental distress to $35,294 to reflect the true cost of Strudwick’s cognitive behavioural therapy and loss of enjoyment of life.

The appeal court also disagreed with the original determination that aggravated damages were covered in the other awards for wrongful dismissal and intentional infliction of mental distress. Given there was “lasting 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.

The total compensatory damages — $192,850.79 to this point — would have a significant impact on Applied Consumer, noted the appeal court. However, it found these were still “insufficient to accomplish the objectives of retribution, denunciation and deterrence” for Applied Consumer’s egregious conduct that extended over months and years. The lower court had awarded $15,000 in punitive damages and Strudwick’s appeal requested $150,000. Though 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.

The appeal court’s increases to compensatory, 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.

The court also noted that as Strudwick’s employer, Applied Consumer was jointly and severally liable for the actions of its employees, the general manager and the supervisor.

For more information see:

Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 CarswellOnt 10413 (Ont. C.A.).

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