Torts That Flow From A Wrongful Dismissal Claim (Part 5 Of 6)

In Lloyd v. Imperial Parking Ltd, the Court held that "[a] fundamental implied term of any employment relationship is that the employer will treat the employee with civility, decency, respect and dignity."1 The exact standard that the employer must adhere to depends on the particular work environment. If that standard is breached, the employee can make a claim for damages.

Mental Distress

In order for a claim for mental distress to succeed, there must be evidence of some actionable wrong apart from the issue of the notice of termination.2 Mental distress must be the effect of a breach of contract, such as the manner of dismissal or the failure to give proper notice — it is not the dismissal itself.

In Wallace, the Supreme Court of Canada held that "damages for mental distress are recoverable if the claim... arises from the dismissal and not from some conduct or circumstances which occurred prior to, or after the dismissal."3 An award for punitive damages may be granted if the employer's conduct was harsh, vindictive, malicious, or reprehensible toward that employee.4

The Court also held that the reasonable notice period could be extended if the employer engaged in bad faith conduct in the relation to the termination. However, the Supreme Court of Canada overruled the Wallace decision in Keays v. Honda Canada Inc.5 In Keays, the Court held that an employer's bad faith or misconduct should be considered under other heads of damage, such as aggravated or punitive damages and/or mental distress.

Intentional Inflection of Mental Suffering (IIMS)

There are three elements to the tort of intentional infliction of mental distress:

Flagrant or outrageous conduct; Calculated to produce harm; and Resulting in a visible and provable illness6 The operative feature of this tort is intent. This tort most commonly arises in cases where there is psychological harassment or bullying in the workplace.

NOTE: Not every allegation of just cause that is not successful at trial will result in a Wallace increment of damages. So long as an employer has a reasonable basis on which to believe it can dismiss an employee for cause, the employer has the right to take that position without fear that failure to succeed on the point will automatically expose it to a finding of bad faith.

Negligent Infliction of Mental Distress

In the recent case of Pieresferreira v. Ayotte, the Court of Appeal concluded that this particular tort is no longer available in the employment...

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