165 I find that Mr. Yenovkian’s conduct was calculated to produce the kind of harm suffered by Ms. Gulian, or he knew that it was substantially … Key Contacts • Patricia Gallivan, Q.C. 15 Piresferreira v. Ayotte 2010 ONCA 384 (CanLII). 210-037, 263 O.A.C. Employment Law in 2020. at para 78. The Court of Appeal’s rejection of a negligence-based tort of harassment in this case is consistent with its prior decision in Piresferreira v. Ayotte, 2010 ONCA 384, in which the Court of Appeal similarly rejected the proposed new tort of negligent infliction of mental suffering in the employment context. The Court of Appeal’s rejection of a negligence-based tort of harassment in this case is consistent with its prior decision in Piresferreira v. Ayotte, 2010 ONCA 384, in which the Court of Appeal similarly rejected the proposed new tort of negligent infliction of mental suffering in the employment context. It is possible that the fact that a perpetrator honestly “didn’t mean to hurt anybody” might be a valid defence; even if the perpetrator was “recklessly indifferent” to the potential harm (see Piresferreira v. Ayotte, 2010 ONCA 384). Moreover, this court has not allowed negligence to ground a claim for mental suffering in the employment context: Piresferreira v. Ayotte , 2010 ONCA 384. 5 th Edition. However, the Court of Appeal overturned the original decision and the partner’s as well. 78-79, leave to appeal refused, [2010] S.C.C.A. (4th) 665, at paras. The court's decision - that employees cannot sue for an employer's negligent infliction of mental suffering - has previously been considered in the post Tort Damages Place in Wrongful Dismissal Cases. The Court noted that Ontario courts had already recognized three of four privacy torts long recognized in the U.S.: The case, Piresferreira v. Ayotte, 2010 OCA 384 (QL) was an appeal from a lower court decision which granted a range of damages to the employee amounting to close to $500,000. In the second step of the test, Tysoe J. had to determine whether the federal government was acting in a policy or operational capacity. He referred to Piresferreira v. Ayotte, 2010 ONCA 384 (CanLII), 319 D.L.R. Piresferreira v. Ayotte, 2010 ONCA 384 (CanLII): The Court of Appeal rejected a duty of care on employers to shield employees from the acts of other employees that might cause mental suffering, saving employers from tort claims in cases to come later that decade. at para.76. She had been under the supervision of the defendant, Richard Ayotte, since 1997. Ayotte, 2010 ONCA 384. In Piresferreira v Ayotte, 2010 ONCA 384, Mr. Ayotte, the Plaintiff’s manager who had a history of aggressive behaviour and verbal abuse, yelled and swore at Ms. Piresferreira because she failed to schedule a client meeting. Fidler, supra note 49 at para.56-57. in circumstances involving workplace harassment. ")The question that I leave to readers is this: has the time come to recognize the tort of negligent infliction of mental suffering in the workplace? v. Ayotte [2010] ONCA. Piresferreira v. Ayotte, 2010 ONCA 384. That decision in Piresferreira is applicable when employees try to use such claims as a sword. In Piresferreira v. Ayotte, 2010 ONCA 384, the court reversed an earlier decision by the Ontario Superior Court and significantly reduced the damages awarded by the trial judge in 2009. The plaintiff, Marta Piresferreira, was employed as an account manager at Bell Mobility in Ottawa. [2] 2008 CanLII 67418 (ON SC); reversed (in part) at 2010 ONCA 384 (CanLII). He also … Vallee J. adopted the definition of “reckless” from Piresferriera v. Ayotte, 2010 ONCA 384: “‘proceeding in the face of subjective awareness that harm of the kind that resulted was substantially certain to follow . Ibid. In some cases, this may be difficult to prove. [2] Brick and Allied Craft Union of Canada v Rise Real Estate Inc., 2014 CanLII 66605. Piresferreira v. Ayotte, 2010 ONCA 384 (CanLII). C.A.) When Ms. Piresferreira tried to explain herself to Mr. Ayotte, he pushed her. (Ont. 24 th Edition, Paperback. Lacks element from . Eleven … However, on the issue of whether Ms. Piresferreira could sue for the damages that she suffered as a result of that abusive behaviour Justice Juriansz wrote the following: Put another way, what the Court of Appeal said in Piresferreira was that an employee cannot sue for damages caused by an employer's abusive conduct because it is "unnecessary and undesirable to expand the court’s involvement in such questions.". The case, Piresferreira v. Ayotte, 2010 OCA 384 (QL) was an appeal from a lower court decision which granted a range of damages to the employee amounting to close to $500,000. In Piresferreira v Ayotte, 2010 ONCA 384, Mr. Ayotte, the Plaintiff's manager who had a history of aggressive behaviour and verbal abuse, yelled and swore at Ms. Piresferreira because she failed to schedule a client meeting. 24 th Edition, Paperback. As regular readers of my employment-law blog, (, Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (CanLII), Labour Pains (previously the Law Blog for the Suddenly Unemployed), Wal-Mart Rolls Back Award of Punitive Damages, Massive Aggravated Damage Awards Contain a Punitive Element, ONSC Awards $100,000 for Tort of Harassment, Merrifield v The Attorney General, 2017 ONSC 1333 (CanLII), Exclusion Clause Insulates Against Tort Claims, Richards v. Media Experts M.H.S. recognition of such a duty and, most recently, the Ontario Court of Appeal in Piresferreira v. Ayotte, 2010 ONCA 384 (“Piresferreira”), expressly rejected the proposition that a duty to provide a psychologically safe work environment exists or ought to be recognized at common law. Ayotte, 2010 ONCA 384 (CanLII). Franklin, A & Cardi J (2008), Gilbert Law Summaries on Torts. 35 Stokes-and-St. Clair College, 2010 ONSC 2133 (CanLII) at paras.2, 15, 23-24; See also Mackie v. 15, 2010, has focused attention on workplace violence and harassment ... dismissal, in Piresferreira and Scott v. Ayotte and Bell Mobility Inc.1, the Ontario Court of Appeal has recently limited the types of claims an employee can make when workplace harassment and violence lead to mental distress. P: 604.631.6718 E: pgallivan@lawsonlundell.com • Rob Sider P: 604.631.6722 E: rsider@lawsonlundell.com • Paul Smith P: 867.669.5532 E: psmith@lawsonlundell.com Team Members Name Phone Email … 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. The Court noted that Ontario courts had already recognized three of four privacy torts long recognized in the U.S.: Employees Cannot Sue for Constructive Dismissal Caused by Chro... Decision No. In Piresferreira v Ayotte, 2010 ONCA 384, the trial judge awarded $15,000 to the plaintiff’s partner for FLA damages, after the main action plaintiff succeeded in her claim. Gill v. Singh (2010), 2010 ONSC 191, 2010 CarswellOnt 566, Lemon J. Prosser, W & Keeton, P (2004), Prosser and Keeton on Torts. Although I have previously argued that the Piresferreira decision was legally wrong and, in fact, contrary to other appellate decisions including Sulz v. Canada, 2006 BCCA 582 and Queen v. Cognos, (the Supreme Court of Canada did not disturb or address the trial judge's award of $5,000 in damages for "emotional stress" in its decision in Queen v. Cognos Inc., [1993] 1 SCR 87,) this post will focus on a different issue: whether the decision highlights the difference to which claims of a hostile work environment can be put. My penultimate questions are these: Does the above-referenced passage from Evans not require the judge hearing the case to determine whether the working atmosphere was hostile, embarrassing or humiliating? P employee of Bell Mobility; manager was aggressive. For those wishing my arguments in favour of recognizing such a cause of action, consider my earlier post: Tort Damages Place in Wrongful Dismissal Cases especially under the heading "Why tort damages are necessary and why you have to prove them. Piresferreira. The Facts The facts in Piresferreira are straight-forward:3 • Ms. Piresferreira was an account manager, employed by Bell Mobility for approxi-mately 10 years starting in 1995. It is possible that the fact that a perpetrator honestly “didn’t mean to hurt anybody” might be a valid defence; even if the perpetrator was “recklessly indifferent” to the potential harm (see Piresferreira v. Ayotte, 2010 ONCA 384). 347 Piresferreira v. Abraham, S (2012), The Forms and Functions of Tort Law. Ontario employers can rest easy as a result of the Ontario Court of Appeal’s recent decision in Piresferreira v. Ayotte, 2010 ONCA 384. 4 th Edition (Concepts and Insights Series); Paperback. 165 I find that Mr. Yenovkian’s conduct was calculated to produce the kind of harm suffered by Ms. Gulian, or he knew that it was substantially certain to follow: Piresferreira v. Ayotte, 2010 ONCA 384 (Ont. What the employee can likely no longer do is claim tort damages for the tort of harassment, which was only recently recognized by the Ontario court and about which I wrote in my post: Ontario … 78-79, leave to appeal refused, [2010] S.C.C.A. When Ms. Piresferreira tried to explain herself to Mr. Ayotte, he pushed her. Piresferreira sued Ayotte and Bell Mobility for the tort of negligent infliction of mental distress, assault and constructive dismissal. (See paragraph 42 of the decision.). Writing for the unanimous Court of Appeal for Ontario, the Honourable Justice Russell Juriansz found that the tort of negligent infliction of mental of mental suffering was not available to Ontario employees. In allowing the appeal in respect of the award of non-pecuniary damages, the Honourable Justice Russell G. Juriansz, who also authored the decision in Piresferreira v.Ayotte, 2010 ONCA 384, wrote the following on behalf of the Court of Appeal: [109] … the evidence did not support the trial judge’s substantial non-pecuniary award of $200,000. (3rd) 23 (S.C.J.). (3d) 163, 2010 C.L.L.C. However, the Court of Appeal overturned the original decision and the partner’s as well. Fidler, supra note 49 at para.56-57. [Ontario] TOR.V.7.b.i Subject Title: Torts Classification Number: V.7.b.i Defamation -- Damages -- Types of damages available -- General damages Plaintiff was editor of newspaper for Sikh community -- Defendants published three articles in their newspaper 52 Ibid. at para.47; See also Piresferreira v. Ayotte, 2010 ONCA 384 (Can LII); See also Honda, supra note 31. In late May 2012, the Ontario Court of Appeal (“the Court”) (with one justice in dissent) varied those damages in Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419. Ibid. Moreover, on my reading of Piresferreira v. Ayotte, 2010 ONCA 384, the employee can still attach to such a constructive dismissal claim a claim for aggravated damages for the manner of dismissal. Claims of a Hostile Work Environment: Shields not Swords? Lumsden v. Manitoba, 2009 MBCA 18 (CanLII) at paras.68-71, 75 (Damage award of $25,000 for mental distress); Saunders v. RBC Life Insurance Co., 2007 N.L.T.D. Piresferreira v. Ayotte, 2010 ONCA 384 If you have any questions regarding this Law Bulletin, please contact a member of the Labour and Employment Group. P: 604.631.6718 E: pgallivan@lawsonlundell.com • Rob Sider P: 604.631.6722 E: rsider@lawsonlundell.com • Paul Smith For full explanation on the application of the test, see the recent post by Allison MacIsacc, A Victory for Employers: Piresferreira v. Ayotte Limits Liability for Mental Suffering in Employment Relationships. (3d) 494, 2019 C.L.L.C. 165 I find that Mr. Yenovkian’s conduct was calculated to produce the kind of harm suffered by Ms. Gulian, or he knew that it was substantially certain to follow: Piresferreira v. Ayotte, 2010 ONCA 384 (Ont. C.A. [3] Piresferreira v Ayotte, 2010 ONCA 384. Ontario employers can rest easy as a result of the Ontario Court of Appeal’s recent decision in Piresferreira v. Ayotte, 2010 ONCA 384. at para 78. Ibid. He referred to Piresferreira v. Ayotte, 2010 ONCA 384 (CanLII), 319 D.L.R. C.A.) S.C.J.) at para.76. Merrifield v. Canada (Attorney General), 2019 ONCA 205, 2019 CarswellOnt 3716 2019 ONCA 205, 2019 CarswellOnt 3716, 145 O.R. 16in Piresferreira ibidit was $594,000. For instance, consider the case Piresferreira v. Ayotte (2010 ONCA 384). 1227/19, 2019 ONWSIAT 2324 (CanLII), Exclusion Clause Insulates Against Tort Claims, Richards v. Media Experts M.H.S. 5 th Edition. v. Ayotte (ONCA 2010) [Bell Mobility, description of P, “battery”, vicarious liability] *P fails test in this case(1) TJ put too much weight on failure to apologize (what case law considers to be F&O is expanding but this too far) (2) Not established. I look forward to reading the Supreme Court of Canada decision in David Matthews v. Ocean … [3] 2013 HRTO 1644 (CanLii). 2 (2008), 72 C.C.E.L. As established in Court, Ayotte was a … [Ontario] TOR.V.7.b.ii Subject Title: Torts Classification Number: V.7.b.ii Defamation -- Damages -- Types of damages available -- Aggravated and punitive damages Plaintiff was editor of newspaper for Sikh community -- Defendants published three articles in their newspaper that called plaintiff liar and made other false statements … Franklin, A & Cardi J (2008), Gilbert Law Summaries on Torts. In some cases, this may be difficult to prove. . (3d) 23. 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. Her manager then struck her in … Here a Bell employee was assaulted by her manager who then placed her on a PIP as a means of trying to fend off any potential complaint. For my thoughts upon that issue, I would direct readers to the post Tort Damages Place in Wrongful Dismissal Cases. [4] Quoting from Wall v. University of Waterloo, (1995), 27 CHRR D/44 (Ontario Bd. Prosser, W & Keeton, P (2004), Prosser and Keeton on Torts. [1] Sigrist and Carson v London District Catholic School Board, 2008 HRTO 14 at para 42. As always, everyone’s situation is different. 27 is: flagrant or outrageous conduct; calculated to produce harm; and; resulting in a visible and provable illness. 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. S.C.J.) 2724, 82 C.C.E.L. 50 Ibid. Key Contacts • Patricia Gallivan, Q.C. And is not the judge further required to determined whether a "reasonable person" would have tolerated the situation? In paragraph 177 the court stated that “it was reasonably foreseeable to Ayotte that every aspect of this behaviour was likely to cause Piresferreira anxiety, stress and emotional upset.” Paperback. (3d) 494, 2019 C.L.L.C. Ibid. No. Abraham, S (2012), The Forms and Functions of Tort Law. No. Failure to apologise after altercation does not satisfy element 1 – high threshold for flagrant and outrageous. The plaintiff in Merrifield relied on Piresferreira v. Ayotte, (2008), 2008 CanLII 67418 (ON SC), 72 C.C.E.L. Occupational Health and Safety Statutes Tbaytel announced the hiring of SB as an executive. Moreover, on my reading of Piresferreira v. Ayotte, 2010 ONCA 384, the employee can still attach to such a constructive dismissal claim a claim for aggravated damages for the manner of dismissal. The court's decision - that employees cannot sue for an employer's negligent infliction of mental suffering - has previously been considered in the post Tort Damages Place in Wrongful Dismissal Cases. [1] Sigrist and Carson v London District Catholic School Board, 2008 HRTO 14 at para 42. Here a Bell employee was assaulted by her manager who then placed her on a PIP as a means of trying to fend off any potential complaint. Intention under element 2 is subjective, not objective – cannot say manager ought to have foreseen consequences to P (3d) 14, 74 C.C.L.T. (4th) 665, at paras. 17 2002 CanLII 45005 (ON CA). (Ont. Legislation / Case Law At the outset, we note that Dr. Shain is misguided in arguing that there is one general “legal duty” on … With my final question being this: If a judge is required to undertake the above-referenced analysis when an employee alleges that he or she should not be made to mitigate his damages be returning to a hostile, embarrassing or humiliating work environment (thus using the allegations as a "shield") why is it "unnecessary and undesirable to expand the court’s involvement in such questions" when the employee puts forwards the allegations as a claim, (thus using the allegations as a "sword? Subscribe via RSS; Follow us on Twitter; Follow us on LinkedIn; About Us. Moreover, this court has not allowed negligence to ground a claim for mental suffering in the employment context: Piresferreira v. Ayotte, 2010 ONCA 384. The American Law Institute, (2013), A … [3] Piresferreira v Ayotte, 2010 ONCA 384. In Piresferreira v. Ayotte, 2010 ONCA 384, the court reversed an earlier decision by the Ontario Superior Court and significantly reduced the damages awarded by the trial judge in 2009. 164 The test for intentional infliction of mental suffering as set out by the Court of Appeal in Piresferreira v. Ayotte, 2010 ONCA 384 (Ont. Her manager Richard Ayotte was described as “critical, loud, demanding and aggressive”. Piresferreira v. Ayotte, 2010 ONCA 384 If you have any questions regarding this Law Bulletin, please contact a member of the Labour and Employment Group. Inc., 2012 ONCA 769 (CanLII), Employee Fired by Mistake had Duty to Return, Chevalier v. Active Tire & Auto Centre Inc., 2012 ONSC 4309 (CanLII), ONCA: No Duty to Mitigate Unless Offer Made After Termination, Farwell v. Citair, Inc. (General Coach Canada), 2014 ONCA 177 (CanLII), Wallace v. United Grain Growers Ltd., [1997] 3 SCR 701, McGill University-Faculty of Law/Faculté de droit, ONSC Awards $100,000 for Tort of Harassment, Merrifield v The Attorney General, 2017 ONSC 1333 (CanLII), Tort of harassment: Employer ordered to pay employee $100,000. On this point the Honourable Justice Michel Bastarache, writing for the majority of the Supreme Court, held as follows: My Question: Why Only Shields and Not Swords? Failing to be transparent or honest with the accused employee during the investigation process: Elgert; Karmel; Piresferreira v Ayotte, 2010 ONCA 384, 319 DLR (4th) 665; Failing to provide particulars of allegations to an accused employee: Chapell; Elgert; Failing to provide the accused employee with an adequate opportunity to explain or respond: Doyle; Elgert; Lalonde; Chapell; Failing to …