The facts in Piresferreira v. Ayotte et al. briefly were as follows. P was a 10-year employee who worked as an account manager with Bell Mobility. Towards the end of her employment she received negative performance evaluations. Her manager was critical, demanding, loud and aggressive. In the last days of her employment she had a confrontation with the manager, who pushed her and told her to “get he hell out of his office.” He indicated that he would prepare a performance improvement plan for her. After that P went home and later went on sick leave. She filed a complaint with human resources, which found that the manager had acted inappropriately. He was relocated and ultimately retired. P refused the employer’s offer to return to work. A psychologist and a psychiatrist diagnosed P with post-traumatic stress disorder and a major depressive disorder resulting, among others, from the confrontation with the manager and the manner in which Bell had dealt with it.
Trial judge found the manager and/or Bell liable for battery, wrongful dismissal, intentional and negligent infliction of mental distress, and awarded in excess of $500,000.
The focus of the Ontario Court of appeal’s decision was on the trial judge’s decision that the manager and Bell were liable for the tort of negligent infliction of mental distress. The trial judge had found that the manager and the employer owed a duty of care based on the contractual relationship to ensure a safe and harassment free work environment, in accordance with Bell’s Code of Business Conduct. However, the Appeals Court found that the trial judge erred in basing the standard of care on a breach of a contractual duty. For concurrent liability to exist, there must be a duty of care that would exist even in the absence of a contractual obligation. The Court then noted (erroneously, with respect (see below)) that no Canadian appellate court has recognized a cause of action for negligent infliction of mental distress, and proceeded to apply the test articulated by the House of Lords in Anns v. Merton London Borough Council. The Ontario Court of Appeal accepted that the employment relationship put the parties in a relationship of proximity and that the damages the flowed were reasonably foreseeable. However, in the Court’s view, the “general duty postulated would require employers to take care to shield employees from the acts of other employees that might cause mental suffering,” a broader framework than that set out in Honda Canada. In the Court concluded that the tort of negligent infliction of mental distress was not available.
The Court also set aside the finding of intentional infliction of mental distress. While the manager’s conduct was flagrant and outrageous, the evidence did not support a finding that the manager intended or knew that the harm was substantially certain to follow. The court assessed “generously” from the battery at $15,000. It also found that $45,000 for the manner of dismissal had a solid foundation and agreed that a 12 months’ notice period was appropriate.
It appears that the Ontario decision conflicts with the decision of the British Columbia Court of Appeal’s decision in Sulz v. Minister of Public Safety and Solicitor General. Moreover, Sulz was not argued before the Ontario court. It will be interesting to see how this works out?