Court of Appeal says Employers Cannot be Sued for Negligent Infliction of Mental Distress

The Ontario Court of Appeal has become the first appellate court in Canada to rule on whether there is a free-standing cause of action against employers for negligent infliction of mental harm in the workplace. The Court of Appeal overturned the Ontario Superior Court’s groundbreaking 2008 decision in Piresferreira v. Ayotte, and pronounced that the tort of negligent infliction of mental distress is not available in the employment context.

During an argument, Piresferreira’s supervisor, Ayotte, had pushed her shoulder, threatened her with a performance improvement plan, and sworn at her. In response to Piresferreira’s complaint, the employer, Bell Mobility, told her that Ayotte would apologize, would be disciplined, and would be required to attend conflict management and communication training courses. However, these steps were not implemented. Piresferreira was diagnosed with depression, anxiety and post-traumatic stress disorder and was off work and in receipt of long-term disability. She brought a claim for damages against both Ayotte and Bell for assault and battery, negligent and intentional infliction of emotional distress, past and future loss of income, and constructive dismissal.

The Ontario Superior Court found that Ayotte had committed the torts of assault and battery and intentional infliction of mental distress, and held the employer vicariously liable for his actions. The Court also found Bell liable for negligent infliction of mental distress. Further, in the trial judge’s view, the employer’s failure to take Piresferreira’s complaints seriously amounted to constructive dismissal. On these bases, the Court found that Bell and Ayotte were jointly and severally liable for over $500,000 in damages.

The Court of Appeal found that the trial judge had erred in concluding that the tort of negligent infliction of mental suffering was available for conduct that occurred in the course of employment. The Court stated that policy considerations militated against recognition of a duty of care arising from the parties’ employment contract. As Justice Juriansz stated:

“A general duty to take care to shield an employee during the entire course of his or her employment from acts in the workplace that might cause mental suffering strikes me as far more expansive than a duty to act fairly and in good faith during just the termination process.”

The Court of Appeal concluded that Piresferreira had also failed to establish that Ayotte had intended to cause harm or that he even knew that the type of harm that occurred was substantially certain to follow from his actions. Her claim for intentional infliction of mental suffering was dismissed.

Although the Court of Appeal set aside the award for negligent and intentional infliction of mental anguish, it upheld the finding of assault and battery and awarded $15,000 in general damages for which Ayotte and Bell Canada were jointly and severally liable. The Court also awarded $45,000 for mental suffering due to the manner of the dismissal. The award of twelve months for constructive dismissal was upheld.

Especially topical given all of the new and onerous obligations placed on employers by Bill 168 (which came into force on June 15th, 2010), this decision confirms that an employer can be held jointly and severally liable for the assault of one employee by another.

Piresferreira plans to seek leave to appeal this decision to the Supreme Court of Canada.