Strudwick v. Applied Consumer & Clinical Evaluations Inc., (2016) 349 O.A.C. 360 (CA)

• Judge: Doherty, Epstein and Miller, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: February 03, 2016
• Jurisdiction: Ontario
• Citations: (2016), 349 O.A.C. 360 (CA);2016 ONCA 520

Strudwick v. Applied Consumer (2016), 349 O.A.C. 360 (CA)

MLB headnote and full text

Temp. Cite: [2016] O.A.C. TBEd. JN.035

Vicky Karen Strudwick (plaintiff/appellant/respondent by way of cross-appeal) v. Applied Consumer & Clinical Evaluations Inc. (defendant/respondent/appellant by way of cross-appeal)

(C60903; 2016 ONCA 520)

Indexed As: Strudwick v. Applied Consumer & Clinical Evaluations Inc.

Ontario Court of Appeal

Doherty, Epstein and Miller, JJ.A.

June 30, 2016.

Summary:

Strudwick worked for Applied Consumer and Clinical Evaluations Inc. for over 15 years, initially in data entry and later instructing recruiting staff. In October 2010, Strudwick suddenly became completely deaf. The general manager of Applied Consumer (Hoffman), together with Strudwick's immediate supervisor, commenced a campaign of abuse against Strudwick designed to force her resignation. In addition to publically belittling, harassing and isolating Strudwick in ways relating to her disability, Applied Consumer not only denied Strudwick any accommodation of her disability but also took specific steps to increase the difficulties she faced as a result of her not being able to hear. On May 27, 2011, Hoffman fired Strudwick for a "stunt [she] had [allegedly] pulled" at a company event. At the time of her dismissal, Strudwick was earning $12.85 per hour. Strudwick sued Applied Consumer for damages for wrongful dismissal and related claims arising out of the abuse. Applied Consumer did not defend the action and was noted in default. The motion judge granted judgment in favour of Strudwick in the aggregate amount of $113,782.79, including pre-judgment interest, plus $40,000 in costs. Strudwick appealed the damages assessment on the basis that the motion judge erred by assessing damages that were too low. She also sought leave to appeal the motion judge's costs award. Applied Consumer did not challenge the motion judge's damage awards. However, in its cross-appeal, it sought leave to appeal costs. If leave was granted, it asked the court to reduce the costs award to $20,000.

The Ontario Court of Appeal allowed the appeal and dismissed the cross-appeal. The court concluded that, in certain respects, the trial judge erred in his award of damages. The court increased the total damages to $246,049.92. The court stated that it determined the amounts it would award in relation to the various heads of damages in the light of its conclusion that the aggregate amount the court could award was limited by the total amount claimed in the statement of claim. There was no reason to disturb the trial judge's costs order. The court therefore did not grant leave to appeal costs to either party. The court granted Strudwick her costs of the appeal in the amount of $20,000.

Civil Rights - Topic 993

Discrimination - Employment - Liability of employer for acts of employee - See paragraphs 122 to 124.

Civil Rights - Topic 1164

Discrimination - Remedies - Damages - See paragraphs 52 to 77.

Civil Rights - Topic 7185

Federal, provincial or territorial legislation - Remedies - Damages - See paragraphs 52 to 77.

Damage Awards - Topic 205

Injury and death - Psychological injuries - Mental distress (incl. nervous shock) - See paragraphs 78 to 87.

Damage Awards - Topic 1454

Contracts - Employment contracts - Wrongful dismissal - See paragraphs 35 to 49.

Damage Awards - Topic 2014

Exemplary or punitive damages - Wrongful dismissal - See paragraphs 105 to 119.

Damage Awards - Topic 2411

Aggravated damages - Wrongful dismissal - See paragraphs 99 to 104.

Master and Servant - Topic 7704

Dismissal of employees - Damages for wrongful dismissal - Measure of damages for wrongful dismissal - See paragraphs 35 to 49.

Master and Servant - Topic 7707

Dismissal of employees - Damages for wrongful dismissal - Mental distress - See paragraphs 78 to 87.

Master and Servant - Topic 7712

Dismissal or discipline of employees - Damages for wrongful dismissal - Punitive or vindictive damages - See paragraphs 105 to 119.

Master and Servant - Topic 7713

Dismissal of employees - Damages for wrongful dismissal - Aggravated damages - See paragraphs 88 to 104.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - Reasonable notice - What constitutes - See paragraphs 35 to 49.

Master and Servant - Topic 8003

Dismissal without cause - Notice of dismissal - Reasonable notice - Considerations affecting (incl. bad faith) - See paragraphs 35 to 49.

Master and Servant - Topic 8063

Dismissal without cause - Damages - Mental distress - See paragraphs 78 to 87.

Practice - Topic 1458

Pleadings - Statement of claim - General - Necessity of claiming damages or relief - See paragraphs 25 to 32.

Counsel:

Christopher Du Vernet and Carlin McGoogan, for the appellant;

Ernest D. Coetzee, for the respondent.

This appeal and cross-appeal were heard on February 3, 2016, before Doherty, Epstein and Miller, JJ.A., of the Ontario Court of Appeal. The following judgment of the Court of Appeal was delivered by Epstein, J.A., and was released on June 30, 2016.