Prinzo v. Geriatric Care Centre, (2002) 161 O.A.C. 302 (CA)

• Judge: McMurtry, C.J.O., Weiler and Charron, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: July 09, 2002
• Jurisdiction: Ontario
• Citations: (2002), 161 O.A.C. 302 (CA);2002 CanLII 45005 (ON CA);2002 CanLII 45005 (NS CA);60 OR (3d) 474;215 DLR (4th) 31;[2002] CarswellOnt 2263;[2002] OJ No 2712 (QL);161 OAC 302;17 CCEL (3d) 207

Prinzo v. Geriatric Care Centre (2002), 161 O.A.C. 302 (CA)

MLB headnote and full text

Temp. Cite: [2002] O.A.C. TBEd. JL.025

Iole Prinzo (plaintiff/respondent in appeal/appellant by cross-appeal) v. Baycrest Centre For Geriatric Care (defendant/appellant in appeal/respondent by cross-appeal)

(C34071)

Indexed As: Prinzo v. Baycrest Centre for Geriatric Care

Ontario Court of Appeal

McMurtry, C.J.O., Weiler and Charron, JJ.A.

July 9, 2002.

Summary:

The plaintiff started working for the Baycrest Centre for Geriatric Care as a hairdresser in their hairdressing shop in 1980. In 1981 she became the shop manager. The plaintiff sued the defendant, alleging that she had been wrongfully dismissed.

The Ontario Superior Court, in a decision reported at [2000] O.T.C. 151, allowed the action. The court held that the plaintiff was entitled to a reasonable notice period of 18 months and damages for "lieu time". The court awarded the plaintiff $15,000 damages for mental distress arising from the dismissal and $5,000 punitive damages for the egregious manner of the dismissal. The court also awarded the plaintiff solicitor and client costs. The defendant appealed. The plaintiff cross-appealed the starting date of the notice period and sought an increase in the award of punitive damages.

The Ontario Court of Appeal allowed the appeal with respect to the issue of length of notice, punitive damages and costs at trial. The court allowed the cross-appeal with respect to the time when notice of termination was given. The trial judgment was otherwise confirmed.

Damage Awards - Topic 2411

Aggravated damages - Wrongful dismissal - The plaintiff sued for wrongful dismissal - The trial judge allowed the action and awarded damages, including $15,000 "aggravated damages" for intentional infliction of mental suffering - The Ontario Court of Appeal stated that the damages were not "aggravated damages" because they did not arise from the dismissal itself, but rather from the employer's conduct before the dismissal - However, the court upheld the award of $15,000 as damages for intentional infliction of harm - Alternatively, if the defendant's conduct was viewed as a course of conduct respecting the manner of dismissal, it would also be a breach of the employer's duty of good faith and fair dealing, justifying an extended notice period - See paragraphs 32 to 72.

Damages - Topic 1326

Exemplary or punitive damages - Wrongful dismissal - Prinzo sued Baycrest for wrongful dismissal - The trial judge found that during a period when Prinzo was medically unable to perform any work, two Baycrest staff harassed her in an attempt to get her to return to work to perform modified duties, so that she could be let go - This caused Prinzo mental distress that was manifested in physical illness - The trial judge awarded Prinzo damages in lieu of notice, $15,000 damages for mental distress, and $5,000 punitive damages - The Ontario Court of Appeal set aside the punitive damages award because it compensated for the same conduct as the award for mental distress - The trial judge gave no reasons for making a punitive damages award in addition to his award for mental distress - Nor did he engage in an analysis of the applicable principles governing punitive damages - See paragraphs 73 to 75.

Damages - Topic 6748.1

Contracts - Employment relationship or contract - For breach by employer - Loss of lieu or banked time - The plaintiff sued the defendant for wrongful dismissal - The trial judge awarded her damages for, inter alia, "lieu time" - "Lieu time" was a period when the employee was not required to work but was entitled to pay because she had worked extra hours - The defendant appealed - It submitted that there was no basis upon which to award the plaintiff any damages for "lieu time", that "lieu time" was akin to an attempt to claim vacation time during the notice period - The Ontario Court of Appeal upheld the trial judge's decision to award the plaintiff pay in lieu of time off - See paragraph 30.

Master and Servant - Topic 7712

Dismissal of employees - Damages for wrongful dismissal - Punitive or vindictive damages - [See Damages - Topic 1326 ].

Master and Servant - Topic 7713

Dismissal of employees - Damages for wrongful dismissal - Aggravated damages - [See Damage Awards - Topic 2411 ].

Master and Servant - Topic 7999

Dismissal without cause - Notice of dismissal - When notice begins to run - The plaintiff was given notice of termination on November 27, 1997, when she received a letter of "layoff" stating that her position was being eliminated and that the effective date for elimination would be determined "over the next few weeks" - A trial judge held that the plaintiff was terminated on November 27, 1997 - The Ontario Court of Appeal disagreed, given the trial judge's finding that notice of termination was not clear and unequivocal, and having regard to the fact that a date certain for termination was not given until March 11, 1998 - The court held that the effective date for notice of termination was March 11, 1998 - See paragraphs 16 to 21.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - What constitutes reasonable notice - Prinzo worked for Baycrest, a geriatric care center, for 17.5 years - She was the manager of the beauty shop - Her managerial duties occupied approximately 40% of her time, while 60% of her time involved providing hairstyling services directly to clients - At the time of termination, Prinzo was 49 years old and earned approximately $30,500 a year - A trial judge held that Prinzo was entitled to 18 months' reasonable notice from her termination date - Baycrest appealed - The Ontario Court of Appeal held that Prinzo was entitled to 12 months' notice - The fact that she knew well before her termination date that her employment would end soon was a consideration affecting the length of notice - See paragraphs 22 to 29.

Master and Servant - Topic 8003

Dismissal without cause - Notice of dismissal - Reasonable notice - Considerations affecting (incl. bad faith) - [See Damage Awards - Topic 2411 and Master and Servant - Topic 8000 ].

Master and Servant - Topic 8063

Dismissal without cause - Damages - Mental distress - [See Damage Awards - Topic 2411 ].

Practice - Topic 1463

Pleadings - Statement of claim - General - Requirement of disclosing cause of action - The plaintiff (Prinzo) sued for wrongful dismissal - The trial judge allowed the action and awarded damages, including $15,000 for intentional infliction of mental suffering - On appeal, the defendant submitted, inter alia, that Prinzo did not plead a separate actionable wrong in her statement of claim - The Ontario Court of Appeal disagreed - Prinzo claimed "damages for mental distress" in her statement of claim and alleged that her family doctor had advised the defendant that their conduct was adversely affecting her health, but they continued to attempt to coerce her to return to work so that her position could be terminated - Further, the defendant's statement of defence indicated that it was aware that wilful conduct on its part injurious to Prinzo's health was being asserted - See paragraphs 49 to 53.

Practice - Topic 7451

Costs - Solicitor and client costs - Entitlement to solicitor and client costs - General - The Ontario Court of Appeal stated that "As a general rule solicitor-and-client costs are awarded on very rare occasions such as when a party has displayed outrageous conduct during the proceedings ... . On occasion reasons of public interest may also justify the making of such an order ... . This court's decision in Foulis v. Robinson ... cautions against a trial judge awarding solicitor-and-client costs because the parties did not settle, or second guessing how a trial should be conducted. Costs on a solicitor-and-client scale are not to be awarded as damages. They are awarded to mark the court's disapproval of the conduct of a party during the litigation ... ." - See paragraph 76.

Torts - Topic 8710

Duty of care - Particular relationships - Claims for nervous shock and emotional suffering - Intentional infliction of - The Ontario Court of Appeal noted that the elements of the tort of intentional infliction of mental suffering were 1) conduct that was flagrant and outrageous, 2) calculated to produce harm and 3) resulting in a visible and provable injury - The court stated that the requirement that the conduct be calculated to produce harm was met where the actor desired to produce the consequences that followed from the act, or if the consequences were known to be substantially certain to follow - See paragraphs 43 and 45.

Torts - Topic 8710

Duty of care - Particular relationships - Claims for nervous shock and emotional suffering - Intentional infliction of - Prinzo sued Baycrest for wrongful dismissal - The trial judge found that for several months, Prinzo was medically unfit for any work, including modified duties; two Baycrest staff (Gates and Frost) repeatedly called Prinzo urging her to return to perform modified duties; Frost told Prinzo's doctor that Prinzo had to be brought back to work so she could be let go; Gates sent Prinzo a letter that erroneously implied that Prinzo's doctor had agreed to her return to work; Gates advised Prinzo that a refusal to perform modified work was a work refusal; the emotional upset to Prinzo resulting from the calls was or ought to have been apparent to the callers; and yet they unnecessarily persisted in making the calls - There was evidence that the emotional upset manifested itself in physical illness - The trial judge held that Baycrest engaged in the tort of intentional infliction of mental suffering, an independent cause of action - The Ontario Court of Appeal agreed - See paragraphs 41 to 64.

Cases Noticed:

Gibb v. Novacorp International Consulting (1990), 48 B.C.L.R.(2d) 28 (C.A.), refd to. [para. 17].

MacAlpine v. Stratford General Hospital (1998), 111 O.A.C. 346; 38 C.C.E.L.(2d) 1 (C.A.), dist. [para. 17].

Ahmad v. Proctor & Gamble Inc. (1991), 44 O.A.C. 338; 1 O.R.(3d) 491 (C.A.), refd to. [para. 17].

Marshall v. Watson Wyatt & Co. (2002), 155 O.A.C. 103; 209 D.L.R.(4th) 411 (C.A.), refd to. [para. 23].

Bardal v. Globe and Mail Ltd. (1960), 24 D.L.R.(2d) 140 (Ont. H.C.), refd to. [para. 27].

Cronk v. Canadian General Insurance Co. (1995), 85 O.A.C. 54; 25 O.R.(3d) 505 (C.A.), refd to. [para. 27].

Minott v. O'Shanter Development Co. (1999), 117 O.A.C. 1; 40 C.C.E.L.(2d) 1; 168 D.L.R.(4th) 270; 42 O.R.(3d) 321 (C.A.), refd to. [para. 28].

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. 34].

Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085; 94 N.R. 321; 58 D.L.R.(4th) 193; [1989] 4 W.W.R. 218; 36 B.C.L.R.(2d) 273; 90 C.L.L.C. 14,035; 25 C.C.E.L. 81, refd to. [para. 34].

Whiten v. Pilot Insurance Co. et al. (2002), 283 N.R. 1; 156 O.A.C. 201; 209 D.L.R.(4th) 257 (S.C.C.), refd to. [para. 34].

Farley v. Skinner, [2001] 4 All E.R. 801 (H.L.), refd to. [para. 34, footnote 1].

Wallace v. United Grain Growers Ltd. (1997), 102 Man.R.(2d) 161; 93 W.A.C. 161, refd to. [para. 36].

Noseworthy v. Riverside Pontiac-Buick Ltd. et al. (1996), 13 O.T.C. 233; 22 C.C.E.L.(2d) 183 (Gen. Div.), revd. (1998), 116 O.A.C. 265; 168 D.L.R.(4th) 629; 39 C.C.E.L.(2d) 37 (C.A.), refd to. [para. 37].

McKinley v. BC Tel et al., [2001] 2 S.C.R. 161; 271 N.R. 16; 153 B.C.A.C. 161; 251 W.A.C. 161, refd to. [para. 39].

Wilkinson v. Downton, [1897] 2 Q.B. 57, refd to. [para. 41].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84; 42 D.L.R.(4th) 81; 42 C.C.L.T. 1, refd to. [para. 42].

Rahemtulla v. Vanfed Credit Union (1984), 29 C.C.L.T. 78 (B.C.S.C.), refd to. [para. 43].

Boothman v. Canada, [1993] 3 F.C. 381; 63 F.T.R. 48 (T.D.), refd to. [para. 47].

Clark v. Canada, [1994] 3 F.C. 323; 76 F.T.R. 241 (T.D.), refd to. [para. 47].

Bogden v. Purolator Courier Ltd. and Capparelli (1996), 182 A.R. 216 (Q.B.), refd to. [para. 47].

Antonacci v. Great Atlantic & Pacific Co. of Canada Ltd. (2000), 128 O.A.C. 236; 48 C.C.E.L.(2d) 294 (C.A.), dist. [para. 53].

Housen v. Nikolaisen (2002), 286 N.R. 1 (S.C.C.), refd to. [para. 57].

Timmermans v. Buelow (1984), 38 C.C.L.T. 136 (Ont. H.C.), refd to. [para. 61].

Hill v. Church of Scientology and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 74].

Sylvan Lake Golf & Tennis Club Ltd. v. Performance Industries Ltd. and O'Connor (No. 2) (2002), 283 N.R. 233; 299 A.R. 201; 209 D.L.R.(4th) 318 (S.C.C.), refd to. [para. 74].

Rice, P.C.J. v. New Brunswick (2002), 282 N.R. 201; 245 N.B.R.(2d) 299; 636 A.P.R. 299 (S.C.C.), refd to. [para. 76].

Young v. Young et al., [1993] 4 S.C.R. 3; 160 N.R. 1; 34 B.C.A.C. 161; 56 W.A.C. 161, refd to. [para. 76].

Friends of the Oldman River Society v. Canada (Minister of Transport and Minister of Fisheries and Oceans), [1992] 1 S.C.R. 3; 132 N.R. 321, refd to. [para. 76].

Foulis v. Robinson (1978), 92 D.L.R.(3d) 134 (Ont. C.A.), refd to. [para. 76].

Mortimer et al. v. Cameron et al. (1994), 68 O.A.C. 332; 17 O.R.(3d) 1 (C.A.), refd to. [para. 76].

Authors and Works Noticed:

Ball, S.R., Canadian Employment Law (1996 Looseleaf), pp. 20-62ff [para. 34]; 22-41 [para. 72, footnote 3].

England, Geoffrey, Christie, Innis, and Christie, Merran, Employment Law in Canada (3rd Ed.) (1998 Looseleaf Update), p. 16.45ff [para. 48, footnote 2].

Fleming, J.G., The Law of Torts (9th Ed. 1998), pp. 37 to 40 [para. 48, footnote 2].

Fridman, G.H.L., The Law of Torts in Canada (1989), pp. 47 to 50 [para. 48, footnote 2]; 53 [para. 45].

Klar, Lewis, Tort Law (2nd Ed. 1996), pp. 29 [para. 45]; 62 [paras. 41, 48, footnote 2].

Linden, Allen M., Canadian Tort Law (7th Ed. 2001), pp. 34 [para. 45]; 53 to 56 [para. 48, footnote 2].

Counsel:

Bernie Romano, for the respondent/appellant on the cross-appeal;

John C. Field and Amanda Hunter, for the appellant/respondent on the cross-appeal.

This appeal and cross-appeal were heard March 18 and 19, 2002, by McMurtry, C.J.O., Weiler and Charron, JJ.A., of the Ontario Court of Appeal. Weiler, J.A., delivered the following decision for the Court of Appeal on July 9, 2002.