Wrongful dismissal case also awards $35,000 in moral damages, $25,000 in punitive damages, $40,000 in legal fees
An employer's decision to contact an employee's physician twice during her medical leave—threatening legal action and attempting to pressure him to change his diagnosis—was one of several actions that has resulted in a $492,186 judgment, including a rare $40,000 penalty for abuse of process.
Justice Babak Barin of the Quebec Superior Court dismissed Totally Nuts and More Inc.'s claim that controller Gianna Pedulla Birenbaum, 57, had resigned and misappropriated funds. Instead, he found the company wrongfully dismissed the 20-year employee after engaging in abusive conduct throughout the termination process.
The dispute in question began in December 2020 when the company declined to give Birenbaum a 1.6-percent salary increase totaling $2,697, despite granting raises to other employees. Within days, Birenbaum's physician placed her on a three-month medical leave due to "generalized anxiety disorder with panic episodes."
When resignation becomes wrongful dismissal
Company president Philip Khazzam insisted Birenbaum had verbally resigned during a FaceTime call on Dec. 16, 2020. However, Birenbaum responded three days later in writing: "I wish to confirm that I am not resigning. I am following my doctor's advice and will be on medical leave until March 17, 2021."
Barin found no resignation occurred, noting that the act "must be voluntary, unambiguous and unequivocal." The court found it significant that Khazzam wrote on Dec. 18: "I haven't received your resignation email/letter thus far."
The company continued pressuring Birenbaum to resign throughout her medical leave, despite repeated requests from both her and her physician to stop contact. On Dec. 22, Khazzam wrote, "Stop with the silly games. You know very well that you resigned on the phone call."
Frequent contact with physician
Dr. Robert Iny testified that Khazzam called his office twice—on Dec. 24 and Dec. 29, 2020—questioning his medical judgment. During the calls, Khazzam indicated he was "suing" Birenbaum, that there was "fraud" involved, and that she had "blackmailed" him.
Khazzam told the physician that a psychiatrist, not a family doctor, should have evaluated Birenbaum and warned Dr. Iny that the matter was "going to go to court" and that he was "going to get dragged in it." According to medical notes, Khazzam also indicated he knew Dr. Iny's family and "did not want to start something" but was "not going to put up with blackmail."
Dr. Iny's medical note stated, "Over the past 5 days, her panic episodes have been greatly exacerbated by daily emails from her employer. As such, I recommend that during her medical leave, her employer avoid sending her emails whenever possible."
Moral damages for ‘serious prejudice’
Barin awarded $397,186 in severance for 24 months' notice, finding the period "appropriate and justified" given Birenbaum's age, 20-year tenure, senior position, and health condition at termination.
The court awarded $30,000 in moral damages for "serious prejudice" Birenbaum suffered, including the employer filing a police report alleging fraud. Barin wrote, "An employer must be held accountable for its abusive behaviour towards an employee. This is a case on point."
An additional $25,000 in punitive damages was awarded for intentional Charter violations. Interestingly, the court ordered $40,000 for legal fees, finding the company's $145,605 misappropriation claim, which shrank to zero at trial, constituted abuse of process. The Commission des normes had earlier found the employer's conduct qualified as psychological harassment.
