Piresferreira et al. v. Ayotte et al.,

• Jurisdiction: Ontario
• Judge: Cronk, Lang and Juriansz, JJ.A.
• Neutral Citation: 2010 ONCA 384
• Date: 02 December 2009
• Court: Court of Appeal (Ontario)

Piresferreira v. Ayotte (2010), 263 O.A.C. 347 (CA)

MLB headnote and full text

Temp. Cite: [2010] O.A.C. TBEd. MY.095

Marta Piresferreira and Judy Scott (plaintiffs/respondents) v. Richard Ayotte and Bell Mobility Inc. (defendants/appellants)

(C49859; 2010 ONCA 384)

Indexed As: Piresferreira et al. v. Ayotte et al.

Ontario Court of Appeal

Cronk, Lang and Juriansz, JJ.A.

May 28, 2010.

Summary:

During an argument at work, the plaintiff's supervisor, Ayotte, assaulted the plaintiff by pushing her. Ayotte issued the plaintiff a performance improvement plan (PIP). The plaintiff reported the assault to her employer (Bell Mobility). Ayotte and Bell Mobility moved to impose the PIP, including an onerous schedule of frequent meetings with Ayotte. The plaintiff went on sick leave and then long-term disability due to the depression and anxiety that she allegedly experienced after these events and did not return to work. She sued Ayotte and Bell Mobility for damages for assault and battery, negligence, loss of past and future income, breach of contract, intentional or negligent infliction of emotional distress, mental suffering, nervous shock and/or psycho-traumatic disability, and special damages. She also sought damages (including aggravated and/or punitive damages) against Bell Mobility for wrongful or constructive dismissal. The plaintiff's partner sought damages under s. 61 of the Family Law Act for the loss of guidance, care and companionship.

The Ontario Superior Court, in a decision reported at [2008] O.T.C. Uned. Q70, allowed the action and awarded the plaintiff damages totalling $500,955. The trial judge found Ayotte personally liable for the torts of battery and intentional and negligent infliction of mental suffering. She also found Bell Mobility vicariously liable for the torts committed by Ayotte, and directly liable for negligence and constructive dismissal. The trial judge awarded $15,000 to the plaintiff's partner under the Family Law Act. The parties made submissions respecting costs.

The Ontario Superior Court, in a decision reported at [2009] O.T.C. Uned. D96, awarded the plaintiff costs of the action and trial in the amount of $225,000. Ayotte and Bell Mobility appealed, inter alia, the quantum of damages the trial judge awarded for battery, her findings of liability for intentional and negligent infliction of mental suffering, the damages awarded to the plaintiff's partner and the costs award.

The Ontario Court of Appeal allowed the appeal in part. The trial judge erred by finding the tort of negligence was available against an employer and supervisor for conduct in the course of the respondent's employment, by finding that the tort of intentional infliction of mental suffering had been made out and in assessing the damages for battery. The courted substituted an award of $15,000 for the tort of battery. The court set aside the damages the trial judge awarded to the plaintiff's partner for the loss of guidance, care and companionship.

Damage Awards - Topic 628

Torts - Injury to the person - Assault and battery - During an argument at work, the plaintiff's supervisor, Ayotte, assaulted the plaintiff by pushing her on the shoulder - The push carried enough force that the plaintiff was pushed back approximately a foot - She a took a step backward and balanced herself against a filing cabinet - The plaintiff went on sick leave and then long-term disability due to the depression and anxiety that she allegedly experienced after these events and did not return to work - She sued Ayotte and Bell Mobility (the defendants) for damages for, inter alia, assault and battery, intentional and negligent infliction of mental suffering - The trial judge awarded the plaintiff general damages of $50,000 for the three torts - The Ontario Court of Appeal dismissed the intentional and negligent infliction of mental suffering claims - The court assessed damages of $15,000 for the assault and battery - On the findings of the trial judge, the plaintiff suffered no physical injury, psychological harm or other ill effect from the push itself - See paragraphs 81 to 87.

Damage Awards - Topic 2411

Aggravated damages - Wrongful dismissal - During an argument at work, the plaintiff's supervisor, Ayotte, assaulted the plaintiff, by pushing her - The plaintiff account manager had been an employee for 10 years - Ayotte issued the plaintiff a performance improvement plan (PIP) - The plaintiff reported the assault to her employer (Bell Mobility) - Ayotte and Bell Mobility moved to impose the PIP, including an onerous schedule of frequent meetings with Ayotte - The plaintiff went on sick leave and then long-term disability due to the depression and anxiety that she allegedly experienced after these events and did not return to work - She sued Ayotte and/or Bell Mobility for damages for, inter alia, assault and battery and constructive dismissal - The trial judge held that the plaintiff was constructively dismissed, was entitled to 12 months' notice and $45,000 for the manner of the dismissal/bad faith by Bell Mobility - The defendants appealed the finding of bad faith, arguing that the trial judge's criticism of its handling of the plaintiff's complaint against Ayotte was too exacting - The Ontario Court of Appeal rejected the argument - The trial judge's assessment of the plaintiff's damages for mental suffering from the manner of her dismissal had a solid foundation - The plaintiff was assaulted by her supervisor - The trial judge found that Ayotte deliberately timed his delivery of the PIP to the plaintiff to ward off the possibility of a complaint by her - Bell Mobility did not provide the plaintiff with a copy of the disciplinary warning issued to Ayotte or advise her specifically of its contents, and did not take adequate action to ensure that she could feel safe in returning to work - See paragraphs 88 to 92.

Damages - Topic 1292

Losses by third parties - Recoverable losses - Loss of care, guidance and companionship - The plaintiff employee successfully sued her supervisor and employer (defendants) for damages for, inter alia, assault and battery and intentional and negligent infliction of mental suffering - The trial judge awarded $15,000 to the plaintiff's partner for loss of guidance, care and companionship under s. 61(2)(e) of the Family Law Act - The Ontario Court of Appeal set aside the damages award for the plaintiff''s partner - The right of dependents to sue in tort for loss of guidance, care and companionship under s. 61(2)(2) was purely derivative and dependent on the plaintiff's entitlement to damages after being injured by the fault or neglect of another - The court had held that the plaintiff had no entitlement to damages for negligent or intentional infliction of mental suffering and, on the trial judge's findings, the plaintiff suffered no actual damage from the battery itself - Therefore, the partner's derivative and dependent claim failed - See paragraph 93.

Master and Servant - Topic 8003

Dismissal without cause - Notice of dismissal - Reasonable notice - Considerations affecting (incl. bad faith) - [See Damage Awards - Topic 2411 ].

Practice - Topic 9012

Appeals - Restrictions on argument on appeal - Issues or points not previously raised - An employee successfully sued her supervisor and/or employer (defendants) for damages for, inter alia, battery, breach of contract, intentional or negligent infliction of emotional distress, mental suffering, nervous shock and/or psycho-traumatic disability, for constructive dismissal - The defendants appealed - They argued that the trial judge erred by recognizing the existence of the tort of negligent infliction of mental suffering in employment relationships - The defendants had not advanced that argument at trial - The Ontario Court of Appeal considered the argument nevertheless - An appellate court had the inherent authority to permit an argument to be made that was not raised in the proceedings below and should do so when the issue was one of pure law, no further evidence was necessary and there was no prejudice in the form of detrimental reliance - Here, the argument raised a pure question of law of broad importance in employment law - Had the defendants contested the existence of the tort at trial, it would have had no effect on the presentation of the employee's evidence and its only impact would have been on the legal arguments advanced in closing - The plaintiff did not object to the issue being raised before the appellate court and responded to it in her factum - See paragraph 44.

Torts - Topic 8710

Duty of care - Particular relationships - Claims for nervous shock and emotional suffering - Intentional infliction of - The plaintiff employee successfully sued her supervisor (Ayotte) and/or employer (defendants) for damages for, inter alia, battery, intentional infliction of emotional distress, mental suffering, nervous shock and/or psycho-traumatic disability, for constructive dismissal - The defendants appealed - The Ontario Court of Appeal held that the trial judge erred in finding that the tort of intentional infliction of mental suffering was made out - The second element of the tort, the requirement that the conduct be calculated to produce harm, was not established - The trial judge did not find that Ayotte either desired to produce the consequences that followed (posttraumatic stress and depression) or that he knew they were substantially certain to follow - Instead, she found that Ayotte showed reckless disregard for the plaintiff's emotional well-being - This was a lower standard than that provided for in the caselaw - Further, the evidence does not support the inference that Ayotte intended or knew it was substantially certain to follow that the plaintiff would suffer posttraumatic stress disorder or a major depressive disorder with the result that she would never be able to work in any employment again and that her personal life would be changed dramatically - See paragraphs 64 to 80.

Torts - Topic 8711

Duty of care - Particular relationships - Claims for nervous shock and emotional suffering - Negligent infliction of - The plaintiff employee successfully sued her supervisor and/or employer (defendants) for damages for battery, intentional or negligent infliction of mental suffering and for constructive dismissal - The defendants appealed - The Ontario Court of Appeal held that the tort of negligent infliction of mental suffering was not available in the employment context - The parties here had a relationship of proximity and the damages suffered were reasonably foreseeable - The general duty postulated would require employers to take care to shield employees from the acts of other employees that might cause mental suffering - Policy considerations foreclosed the recognition of a duty of care - The recognition of such a tort in the employment context was better left to the legislature - In cases where an employee had been dismissed, the law already provided a remedy respecting the loss complained of here - The recognition of the tort was not necessary - Respecting the category of cases in which the employee suffered mental distress from employer conduct that would not provide the grounds for a claim of constructive dismissal, the postulated duty of care was so general and broad that it could apply indeterminately - See paragraphs 44 to 63.

Cases Noticed:

Keays v. Honda Canada Inc., [2008] 2 S.C.R. 362; 376 N.R. 196; 239 O.A.C. 299, refd to. [para. 3].

Prinzo v. Baycrest Centre for Geriatric Care (2002), 161 O.A.C. 302; 60 O.R.(3d) 474 (C.A.), refd to. [para. 27].

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 44].

Central Trust Co. v. Rafuse and Cordon, [1986] 2 S.C.R. 147; 69 N.R. 321; 75 N.S.R.(2d) 109; 186 A.P.R. 109, refd to. [para. 47].

BG Checo International Ltd. v. British Columbia Hydro and Power Authority, [1993] 1 S.C.R. 12; 147 N.R. 81; 20 B.C.A.C. 241; 35 W.A.C. 241, refd to. [para. 48].

Anns v. Merton London Borough Council, [1978] A.C. 728 (H.L.), refd to. [para. 50].

Nielsen v. Kamloops (City) and Hughes, [1984] 2 S.C.R. 2; 54 N.R. 1, refd to. [para. 50].

Childs v. Desormeaux et al., [2006] 1 S.C.R. 643; 347 N.R. 328; 210 O.A.C. 315, refd to. [para. 50].

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1, refd to. [para. 56].

Wilkinson v. Downton, [1897] 2 Q.B. 57, refd to. [para. 70, footnote 1].

Janvier v. Sweeney, [1919] 2 K.B. 316 (C.A.), refd to. [para. 70, footnote 1].

Bielitski v. Obadiak (1922), 65 D.L.R. 627 (Sask. C.A.), refd to. [para. 70, footnote 1].

Rahemtulla v. Vanfed Credit Union (1984), 51 B.C.L.R. 200 (S.C.), refd to. [para. 73].

Correia v. Canac Kitchens et al. (2008), 240 O.A.C. 153; 91 O.R.(3d) 353 (C.A.), refd to. [para. 74].

Kedia International Inc. et al. v. Royal Bank of Canada et al., [2008] B.C.T.C. Uned. A27; 2008 BCSC 122, refd to. [para. 79].

Counsel:

Ronald Caza and Denis Boivin, for the appellants;

John Yach, for the respondents.

This appeal was heard on December 2, 2009, by Cronk, Lang and Juriansz, JJ.A., of the Ontario Court of Appeal. The following decision of the court was delivered by Juriansz, J.A., on May 28, 2010.