As regular readers of my employment-law blog, ( Labour Pains (previously the Law Blog for the Suddenly Unemployed)
) will know, I have long taken issue with the Court of Appeal’s decision in Piresferreira v. Ayotte, 2010 ONCA 384
. In that case, the Court of Appeal for Ontario held that the tort of negligent infliction of mental suffering was not available in the employment context. For my thoughts upon that issue, I would direct interested readers to the post Tort Damages Place in Wrongful Dismissal Cases
However, in the recent case of Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (CanLII)
, it would appear, at least to me, that the Court of Appeal may have now softened its position on the availability of tort damages in the employment context.
The change is with respect to the test for intentional infliction of mental suffering, established by the Court of Appeal for Ontario in Prinzo v. Baycrest Centre for Geriatric Care, 2002 CanLII 45005 (ON CA)
. One criterion of the Prinzo
test is that, “the flagrant or outrageous conduct” must be “calculated to produce harm.
” While the “harm” that the conduct was intended to produce has always been thought of, at least by me, as physical
harm, i.e. “a visible and provable illness”, which is the third criterion of the Prinzo
test, in Boucher
, Justice Laskin commented that the harm that was intended by the defendant was that the plaintiff would quit. (See paragraphs 48 and 51 of the decision.)
Changing the test from requiring the plaintiff to show that the defendant intended to produce the physical harm that resulted to requiring the plaintiff to only show that the defendant intended to cause some
harm, namely the resignation of the plaintiff, significantly reduces the evidentiary burdens on plaintiffs and significantly lowers the threshold for the award of such damages, I would submit.
If the decision stands, either because neither party appeals, or the Supreme Court of Canada declines to hear the case, or the Supreme Court of Canada agrees with this decision, then we may be seeing significantly more cases of intentional
infliction of mental suffering cases coming out of the employment law world.