$15,000 award for intentional infliction of mental suffering could be a stepping stone to larger awards
What you don’t know can’t hurt you. On the other hand…
Courts are starting to pay more attention to mental suffering and the debilitating consequences poor behaviour by employers can have on stressed employees.
In Zorn-Smith v. Bank of Montreal the Ontario Superior Court of Justice found that because the employer knew about the employee’s complaints and illness as a result of working days, nights and weekends to meet the demands of an understaffed branch, the bank should be found liable for significant damages.
Suzanne Zorn-Smith had worked for the bank for 21 years. In May 2001 her employment was terminated without notice.
In February 2000 she suffered from burnout because of the excessive workload placed on her as a financial services manager and took a short-term leave of absence. Upon returning she repeatedly asked for relief from the heavy workload. Despite this, the bank transferred two of the three financial services managers out of her branch in December 2000 and brought in two replacements with little experience.
Zorn-Smith said she could no longer carry on, but the bank asked her to remain until the end of the RRSP season. In early February 2001 she sought help from a counsellor with the employee assistance program. On Feb. 20 she applied for short-term disability because she had essentially shut down. On her application form her symptoms were described as exhaustion, inability to focus and feeling overwhelmed.
The bank’s medical advisor disagreed that her illness was totally disabling, despite the fact her family doctor believed it was. He noted there were workplace issues but that she needed to return. Consequently the bank took the position that if she failed to return to work in May 28 it would assume the employment relationship had ended. She never returned to work nor did she resign. On June 29 the bank wrote to her stating it had no alternative but to consider the employment relationship had terminated effective June 28.
The court held that because the bank was well aware of the understaffing problem, and because the bank had knowledge of her burnout and repeated requests for relief and chose to do nothing about it, it should be held liable for damages.
As a result Zorn-Smith was not only entitled to a 16-month reasonable notice period, but was also awarded $15,000 for intentional infliction of mental suffering. Some critics argue that $15,000 is insignificant and fails to provide a deterrence for the employer. But this amount may simply be a stepping stone given the system of evolving precedents.
There may be cases where the severity of tactics used by the employer, and the resulting physical illness, will provide justification for a court to award significantly more than $15,000. Considering the debilitating nature of mental suffering, it can be hoped that courts will continue to up the ante for punitive damages in cases where an employer shows no regard or concern for an employee’s mental health. Only time will tell.
On the other end of the spectrum, employers can rest a little easier knowing that in cases where the organization has no knowledge of the mental suffering of an employee, the courts aren’t likely to award damages for intentional infliction of mental suffering.
In Vaillancourt v. 352094 Ontario Ltd., the Ontario Superior Court of Justice considered whether the defendant, a numbered company operating as Kingston Honda, had wrongfully dismissed Johanne Vaillancourt and whether or not it was liable for damages for mental distress.
Vaillancourt started working for the dealership in 1990. She worked her way up the ladder, and eventually bought a share in the dealership. In June 2001 she sold her shares to the dealership and entered into a new employment agreement. At this point the employment relationship began to suffer. In the first week of March she was given six- to nine-months’ working notice of the termination of her employment. Shortly after she told the dealership she was ill. She was suffering from mental depression.
The next day she had a telephone conversation with her employer about work issues. At no time did she disclose that she was suffering from severe depression. The dealership thought she was suffering from a non-life threatening blood pressure problem. The medical note she produced did not disclose her condition. It simply stated that she was “medically unfit to work for a period of four weeks and would be re-assessed in one month’s time.” She never returned to work.
The dealership only found out about the depression when it received a medical report that had been prepared for Employment Insurance purposes in June 2002.
The judge found that although the dealership could be criticized for a cold approach to her, it could not be criticized for failing to respond to her disability because it had no knowledge of it. The judge also faulted Vaillancourt for giving no explanation for her illness, and questioned the timing of it. He said it would lead any reasonable person to conclude she was taking advantage of the situation. Because she was medically fit to return to work in early April and chose not do so, the court found she wasn’t entitled to damages, punitive or otherwise.
In both these cases, communication and knowledge of the employee’s disability were the key factors the courts examined. The courts placed the onus on both the employer and employee to communicate open and effectively. Therefore employers can take certain steps to assist the communication process:
•listen to the employee’s complaint;
•confirm the details of the illness or disability;
•if it is a legitimate complaint, work with the employee to assist her; and
•accommodate the employee’s illness or disability.
For more information see:
•Vaillancourt v. 352094 Ontario Ltd., 2003 CarswellOnt 5123 (Ont. S.C.J.)
•Zorn-Smith v. Bank of Montreal, 2003 CarswellOnt 4845, (Ont. S.C.J.)
Natalie MacDonald is an associate with Grosman, Grosman & Gale, a Toronto-based law firm specializing in employment law. She can be reached at (416) 364-9599 or [email protected]. Look for her next column in the May 17 Guide to Recruitment and Staffing.
Courts are starting to pay more attention to mental suffering and the debilitating consequences poor behaviour by employers can have on stressed employees.
In Zorn-Smith v. Bank of Montreal the Ontario Superior Court of Justice found that because the employer knew about the employee’s complaints and illness as a result of working days, nights and weekends to meet the demands of an understaffed branch, the bank should be found liable for significant damages.
Suzanne Zorn-Smith had worked for the bank for 21 years. In May 2001 her employment was terminated without notice.
In February 2000 she suffered from burnout because of the excessive workload placed on her as a financial services manager and took a short-term leave of absence. Upon returning she repeatedly asked for relief from the heavy workload. Despite this, the bank transferred two of the three financial services managers out of her branch in December 2000 and brought in two replacements with little experience.
Zorn-Smith said she could no longer carry on, but the bank asked her to remain until the end of the RRSP season. In early February 2001 she sought help from a counsellor with the employee assistance program. On Feb. 20 she applied for short-term disability because she had essentially shut down. On her application form her symptoms were described as exhaustion, inability to focus and feeling overwhelmed.
The bank’s medical advisor disagreed that her illness was totally disabling, despite the fact her family doctor believed it was. He noted there were workplace issues but that she needed to return. Consequently the bank took the position that if she failed to return to work in May 28 it would assume the employment relationship had ended. She never returned to work nor did she resign. On June 29 the bank wrote to her stating it had no alternative but to consider the employment relationship had terminated effective June 28.
The court held that because the bank was well aware of the understaffing problem, and because the bank had knowledge of her burnout and repeated requests for relief and chose to do nothing about it, it should be held liable for damages.
As a result Zorn-Smith was not only entitled to a 16-month reasonable notice period, but was also awarded $15,000 for intentional infliction of mental suffering. Some critics argue that $15,000 is insignificant and fails to provide a deterrence for the employer. But this amount may simply be a stepping stone given the system of evolving precedents.
There may be cases where the severity of tactics used by the employer, and the resulting physical illness, will provide justification for a court to award significantly more than $15,000. Considering the debilitating nature of mental suffering, it can be hoped that courts will continue to up the ante for punitive damages in cases where an employer shows no regard or concern for an employee’s mental health. Only time will tell.
On the other end of the spectrum, employers can rest a little easier knowing that in cases where the organization has no knowledge of the mental suffering of an employee, the courts aren’t likely to award damages for intentional infliction of mental suffering.
In Vaillancourt v. 352094 Ontario Ltd., the Ontario Superior Court of Justice considered whether the defendant, a numbered company operating as Kingston Honda, had wrongfully dismissed Johanne Vaillancourt and whether or not it was liable for damages for mental distress.
Vaillancourt started working for the dealership in 1990. She worked her way up the ladder, and eventually bought a share in the dealership. In June 2001 she sold her shares to the dealership and entered into a new employment agreement. At this point the employment relationship began to suffer. In the first week of March she was given six- to nine-months’ working notice of the termination of her employment. Shortly after she told the dealership she was ill. She was suffering from mental depression.
The next day she had a telephone conversation with her employer about work issues. At no time did she disclose that she was suffering from severe depression. The dealership thought she was suffering from a non-life threatening blood pressure problem. The medical note she produced did not disclose her condition. It simply stated that she was “medically unfit to work for a period of four weeks and would be re-assessed in one month’s time.” She never returned to work.
The dealership only found out about the depression when it received a medical report that had been prepared for Employment Insurance purposes in June 2002.
The judge found that although the dealership could be criticized for a cold approach to her, it could not be criticized for failing to respond to her disability because it had no knowledge of it. The judge also faulted Vaillancourt for giving no explanation for her illness, and questioned the timing of it. He said it would lead any reasonable person to conclude she was taking advantage of the situation. Because she was medically fit to return to work in early April and chose not do so, the court found she wasn’t entitled to damages, punitive or otherwise.
In both these cases, communication and knowledge of the employee’s disability were the key factors the courts examined. The courts placed the onus on both the employer and employee to communicate open and effectively. Therefore employers can take certain steps to assist the communication process:
•listen to the employee’s complaint;
•confirm the details of the illness or disability;
•if it is a legitimate complaint, work with the employee to assist her; and
•accommodate the employee’s illness or disability.
For more information see:
•Vaillancourt v. 352094 Ontario Ltd., 2003 CarswellOnt 5123 (Ont. S.C.J.)
•Zorn-Smith v. Bank of Montreal, 2003 CarswellOnt 4845, (Ont. S.C.J.)
Natalie MacDonald is an associate with Grosman, Grosman & Gale, a Toronto-based law firm specializing in employment law. She can be reached at (416) 364-9599 or [email protected]. Look for her next column in the May 17 Guide to Recruitment and Staffing.
