Tort Law and the Employment Relationship

• Author: Netta Romano
• Pages: 175-194

175

Tort Law and the

Employment Relationship

6

Learning Outcomes

After completing this chapter, you will be able to:

• Define the term “tort” and distinguish between

an intentional tort and an unintentional tort.

• Identify the elements that must be proven to

establish an intentional tort.

• Identify the elements that must be proven to

establish an unintentional tort.

• Outline the various categories of common law

damages that may be awarded for tort claims.

Introduction ........................176

What Is a Tort? ......................176

Intentional Torts .....................177

Intentional Infliction of Mental Suffering ..177

Assault and Battery ..................181

Defamation .......................181

Inducing Breach of Contract ...........182

Intentional Interference with

Economic Relations ..............183

Intimidation .......................184

Malicious Prosecution ................185

Unintentional Torts ..................186

Negligent Misrepresentation by

an Employer ....................187

Executive Search Firm Misrepresentations ..189

Inducement: Aggressive Recruiting ......190

Damages ...........................191

Special Damages ...................191

General Damages ...................192

Aggravated Damages ................192

Punitive Damages ...................192

Further Reading .....................192

Related Website .....................192

Key Terms ..........................192

Review Questions ...................193

Discussion Questions .................193

© 2022 Emond Montgomery Publications. All Rights Reserved.

176 EMPLOYMENT LAW FOR PARALEGALS

Introduction

At its core, the relationship between an employer and an employee is a contract: the

employee offers their labour (physical and intellectual), and the employer pays for that

labour. Chapter 4 examined the employment contract in detail, the essentials needed

to create a legally binding contract, typical express terms that may be found in the

contract, and the challenges that may be faced with enforcement when disputes arise.

Chapter 4 also explored the many implied terms that courts will read into the employ-

ment contract to promote a mutually respectful and benecial ongoing relationship.

This chapter examines how tort law comes into play in employment relationships. It

begins with a discussion of what a tort is, followed by a look at specic torts that may

arise in employment. It then analyzes the various categories of damages that may be

granted by courts in tort actions.

What Is a Tort?

A tort is a wrong committed by one person against another that results in loss. The law

holds that we all owe our “neighbour” a duty not to do anything that causes harm,

intentionally or otherwise. A contract between two parties is not required before a court

will step in and award the injured party a remedy, primarily in the form of compensation.

A tort may be intentional or unintentional on the part of the person who is alleged to

have caused the harm. Intentional torts are those in which the person meant to cause

another person some harm or injury from their behaviour. Unintentional torts, also

referred to as negligence, compensate those who have been harmed by the careless or

negligent actions of another person. Injuries resulting from motor vehicle accidents are

unintentional tor ts.

Over time, courts have identied specic torts that are recognized as warranting an

award of damages. Each has its own elements, or parts, that must be proven by the

party claiming to have been harmed on a balance of probabilities. When preparing a

claim or defence, it is imperative to review the law to determine the elements of the

tort and plead the facts that support each element. As common law evolves, legal

research should be updated on the specic tort claim being contemplated to ensure

that the allegations in the claim support the legal requirements.

In the area of employment law, tort claims (often more than one) generally arise in

conjunction with an action against an employer for wrongful dismissal. However, there

is also the possibility that an employer may claim that the actions of an employee

caused the employer harm or injury. The sections below examine the elements that

must be established for various intentional and unintentional torts that may arise in

employment.

1

1 For an excellent summar y of common torts that may arise in a n employment context, see Dav id J Doorey’s The

Law of Work, 2nd ed (Toronto: Emond, 2020) at 247-58.

tort

a wrongful action committed

by one person against

another that is actionab le

© 2022 Emond Montgomery Publications. All Rights Reserved.