Fired for Off-Duty Conduct: Should that hold up?

Can inappropriate off-duty conduct be used by an employer to dismiss an employee for just cause?  The answer is far from clear.

By now, you have probably read about or seen a video of the incident at BMO field.  A CityNews reporter was heckled with the obscene phrase “FHRITP” by a guy looking to grab some attention and get himself on the news.  One of the guys with him defended the vulgarity and expanded on it.  The reporter, Shauna Hunt, fired back.  She professionally pushed these guys, on air, to explain why they would act in such demeaning fashion towards a female reporter.  This was not the first time she had been faced with this harassment and she decided to push back.  The video made its way through cyberspace.  Shortly afterwards, HydroOne fired one of the guys involved in the incident.  Here is the video of the incident.

I am not looking to defend the behaviour of these louts.  There should be little societal tolerance for those who wish to attack and delegitimize women reporters by yelling obscene sexual phrases at them.  Perhaps a complaint could be filed with the Ontario Human Rights Commission and damages could be awarded.  Maybe some type of civil lawsuit would be appropriate.  Or perhaps there are other avenues for dealing with this.

But the question in an employment law blog – is whether this justifies the loss of employment for the obscene heckler and his off-duty conduct.  Even though this happened after a soccer match rather than a basketball game, The answer is still no slam dunk.

If these individuals had been employees of MLSE, for example, and had yelled out these phrases, on air, at an MLSE event, the connection would be clear.  They would have been acting as representative employees of MLSE and there would have been little doubt that dismissal would be the appropriate remedy.  Or if they had been fellow reporters, at the scene while conducting other interviews.

But the guy who was fired was an employee of HydroOne which had nothing to do with this incident.  So the individual was fired for off-duty, obscene conduct, which had no connection to his employment.  He was not charged.  The public would not have associated him with HydroOne, unless he was in a position in which he would regularly deal with public.  If for example, he was in a customer relations position at HydroOne, or a human resources role, the case might be a bit different.

HydroOne has stated that this was a violation of their “Code of Conduct.”  It is certainly admirable of the company to take a strong stand against sexual harassment in the workplace and in society in general.  It is understandable and legally supportable that HydroOne would take steps to ensure that nothing like this occurs in its workplace or in connection with its workplaces.

But off-duty conduct that violates a “code of conduct?”  What are the limits of that code?  Lots of activities might be violations.  Does an employer have the right to follow employees around, off hours, and check up on whether their off-duty activities may or may not violate a code of conduct?  Will HydroOne send representatives to its employees’ private, off-duty parties to monitor what happens once their employees have a few drinks?  Will HydroOne start firing employees for behaviour at their kids’ hockey games, where many parents yell all kinds of obscene things?  Where is the line?

In response, HydroOne might say that they did not need to follow anyone anywhere nor do they intend to do so.   This incident simply became so public that the association with HydroOne caused public embarrassment – to the employee and to the employer.  HydroOne had to act to send a public message that it takes sexual harassment seriously.

While I can certainly understand the embarrassment to the employee, I’m just not sure that anyone would have drawn a tie in between the employee and HydroOne if HydroOne had not identified the protagonist as a HydroOne worker.

If the employee was in a non-unionized position, the issue would simply be whether or not there was “just cause” for terminating his employment.  He would probably bring a wrongful dismissal lawsuit – and there is a reasonable likelihood that a settlement would be reached at some point, though it would be confidential.  But he would not get his job back and he would have few other remedies, aside from some compensation for the loss of his position.  If he could show that HydroOne’s conduct had violated the Ontario Human Rights Code in some way or if he could convince a judge that this was “bad faith” conduct, he might get additional damages.  But that seems like a stretch.  If successful, he would probably wind up with a decent severance package, perhaps in the range of one month per year worked.

On the other hand, if the employee was unionized, he could file a grievance and ask to be reinstated to his position.  He could argue that some action short of dismissal would have been appropriate.  A public apology, a short suspension or some other disciplinary measures.  Or perhaps, even, none at all.  An adjudicator will have to decide whether the employment relationship became so damaged that he could no longer continue as an employee.

In either case, the employer will argue that the employee’s very public behaviour was a violation of its code of conduct and caused the employer public embarrassment.  The employer had to make it clear that sexual harassment, by its employees, while not be tolerated even if the incidents in question involve off-duty conduct.

I have to conclude that this could be a frightening precedent.  Not because I am trying to defend this guy’s conduct, which I am certainly not.  But because I would have concerns about the extent to which a person’s unrelated off-duty conduct, even if reprehensible, can lead to termination of employment in a position that has nothing to do with the conduct.  If it is conduct for which someone is criminally charged – and perhaps even convicted, that becomes a different story.  Or if the conduct is somehow related to the type of position.  For example, if this guy had been a teacher.  One can easily see that parents would be wary of having their children taught by a teacher who conducts himself in this fashion.

But if the type of employment has no relationship whatsoever to the type of incident, the link becomes far more questionable.

We have already seen stories of employers scouring the Facebook pages of potential employees and even asking for Facebook passwords to be able to gather information about job candidates.   It has become clear that no conduct, these days, is truly private when everyone is equipped with a cell phone with a video camera and the ability to instantly upload movies.  But are there any limits as to how employers and potential employers can use all of this information and media?  This is probably an area of law that will continue to develop, quite rapidly.  But the incident does emphasize the point that any inappropriate conduct can become public extremely quickly.  Certainly police offers across Canada and the U.S. have been learning that lesson.

Maybe it is ultimately beneficial for society that people can suffer significant consequences for highly inappropriate behaviour.  Such behaviour might include public instances of harassment, racism, anti-Semitism and other demeaning behaviour.  But I’m just not sure that summary dismissal with no compensation, the “capital punishment of employment law” and being left without a job or an income is the correct remedy here.

It will be interesting to hear what Canadian courts have to say about this.  We will have to watch and see how this case develops.

Whiplash: Great Film. But Does it Promote Bullying?

On a recent plane trip, I was fortunate to find that Air Canada had enhanced its collection of films and added several new releases.  Since this was a lengthy day time flight, I actually managed to watch four new releases, all of which were reasonably good.

But the film that has really resonated with me is one of the Oscar nominated films for 2015 – Whiplash.  This is an extremely powerful movie that addresses some topics that I have written and spoken about on this site and elsewhere.  The film is riveting but it is also quite disturbing.  Its music is outstanding and its direction and acting are both tremendous.

But here is the issue.  How is human excellence produced?  What causes people to become truly great at a particular activity, whether it is sports, music, art or some other discipline?  Of course, most of us can agree that hard work, drive, motivation and some natural talent are all part of the mix.  But the disturbing suggestion of this film is that being subjected to abuse is almost a prerequisite for being able to achieve greatness.  And that is portrayed as a good thing.

The movie is the story of Andrew Neyman, an aspiring young jazz drummer who has been admitted to one of the best music schools in the United States.  There, he is recruited to play under the tutelage of Terence Fletcher, a highly accomplished jazz musician.  Fletcher, whose role is played by J.K. Simmons, is a maniacal, abusive, foul mouthed bully.  Fletcher’s justification is that he knows how to produce great musicians.  He constantly repeats a story about how Charlie Parker only became great after a cymbal was thrown at his head when he made a mistake.  It is abuse and fear, runs the suggestion, that causes people to become inspired and to work hard enough to become great.

As a result, nothing is below Terence Fletcher.  The movie covers the gamut of abuse.  Fletcher publicly berates and humiliates his students.  His repertoire includes obscenities, repeated graphic sexual references, belittling, and even physical abuse.  All for the good of the students, runs the suggestion, even if the weaker musicians will be driven to failure, mental illness or even thoughts of suicide.

Sadly, the movie is a reasonably accurate representation of many bullies who can be found in workplaces, schools, sports teams and in other places, even churches and synagogues.  I can attest to having worked professionally with two of these character types and having seen, in real life, some scenes that could have been included in this movie.  As an employment lawyer, I have met with many people who have conveyed stories of similar incidents, even while working with public or charitable organizations.  I note that in a review that I wrote of Steve Jobs’ book, this type of bullying was one of the central themes – the way that Steve Jobs treated other employees and many other people.

Is this really the path to greatness?  I have a hard time believing that.  I can certainly accept that people need to be pushed to their limits to be able to accomplish the unexpected.  Keeping a music class for hours beyond the scheduled ending time or giving people enormously challenging goals and tasks is not abuse, in my view, even though it might be tough to handle for some.  In some disciplines, people might need to be challenged to their limits in a very physical way.  I can readily accept that in training for ice hockey, football or in military training the physical and emotional demands to which individuals are subjected could be excruciatingly high.  Even in other disciplines, the mental demands that are made, the time lines, the pressure all might be extreme.   And when that happens, particularly for those on the receiving end, it may seem hard to draw the line between demanding requirements and abuse.

In another movie that I happened to watch on this flight as well, Stephen Hawking was also pushed to his limits.  At an early age, the suggestion is that he and other students were given nearly impossible physics problems to solve in a short period of time and pushed to fight extremely difficult challenges.  But there is no suggestion that the professors felt the need to humiliate or abuse Mr. Hawking to bring out his greatness.

I can’t accept that in order to succeed, young musicians, athletes, artists or employees must be humiliated yelled at, sworn at and otherwise abused in order to become great.  Moreover, I can’t even accept the suggestion that these coaches, teachers, bosses and others behave this way because they are personally motivated to create greatness.  More often than not, one finds that the bully is employing this tactic because of his or her own inadequacies, real or perceived.  It may be an issue in the person’s personal life, a professional failing, or something else.  In workplaces, it may be the response to the perceived threat posed by a young up and coming individual.  I am not a psychologist so I can’t explain how bullies are created.  But I would think that these types of tactics are much more likely to be harmful and counterproductive in most scenarios.

I can certainly say that some of the best teachers and bosses that I have had, who pushed people to their limits, were demanding, strict and detailed.  But not abusive.  If anything, the opposite.  They generated respect because those with whom they worked really had the sense that the teachers or bosses were looking out for their well-being while trying to push them to their limits or beyond.  I have often read that type of summary about great sports coaches, military and political leaders or others.  That they inspired people to push themselves to the limit but that they also attracted tremendous respect and displayed empathy and compassion.

Fortunately, in workplaces, in some jurisdictions, like ours in the Province of Ontario, legislation has been passed to try to prevent and ban workplace bullying.  In today’s day and age, parent and student vigilance and changing attitudes help to diminish the likelihood of this type of behaviour in schools, churches and synagogues and other organizations.  But there is still a great deal of it out there.  And there are still many people who accept Terence Fletcher’s mantra – that abuse and fear creates greatness.  That is the very disturbing message of this film.

While the music in the film was excellent, the acting was very strong and the story was riveting, I was left wrestling with the film’s premise as the movie came to its conclusion.  I don’t feel that it was very much of a struggle.  I reject the premise even though I accept that this movie presents the argument as well as anyone might make it.

Key Employment Law Cases of 2014

Another year has passed and that means it is time to reflect back and consider some developments in employment law that we witnessed in 2014.  It was not an earth shattering year in the employment law field in Canada.  There were certainly many decisions reached across the country dealing with wrongful dismissal, breach of human rights, non-competition covenants and a range of other topics.  But the number of decisions that really changed the law was limited.  That being said, I have highlighted a few cases and other employment law developments that are worth summarizing.  I have provided the links to my original blog articles where they are cases that I wrote about.

1.  Ghomeshi and the CBC

This case is not completely over since there is a still a potential labour arbitration pending.  Moreover, the case was not adjudicated.  It was settled.  However, it created a great deal of discussion in the employment law world and for that reason it is worth including.  What are the key points to think about?

A.  Unionized employees will have an incredibly difficult time launching wrongful dismissal or other employment law related cases in the court system.  The proper venue for these cases is labour arbitration hearings.  For the most part, dismissed unionized employees must file a grievance.

B.  Egregious personal conduct, even off-hours conduct, can be cause for dismissal, particularly if at least some of it spills over into the workplace or into workplace related events.  Employers will need to pay careful attention to allegations of improper personal conduct and should address and deal with these matters before they become unmanageable.

C.  Taking an extremely aggressive approach to employment law litigation is simply not always the best strategy for plaintiffs.

There may still be more on this in 2015 as Canadians follow Ghomeshi’s criminal proceedings and his labour arbitration case.  The high profile nature of the dispute warrants its inclusion on a list of interesting developments.

2.  Boucher v. Wal-mart

The Ontario Court of Appeal awarded more than $400,000 to an employee who had been subjected to humiliating treatment in the workplace.  It is still rare in Canada to see these types of awards.  Although the amount of the trial judgment was reduced considerably, this case is still a significant weapon in the arsenal of decisions upon which abused employees and their counsel will rely.  It remains to be seen whether large scale punitive and aggravated damages become more commonplace in Canada.  Employees facing humiliating workplace conduct and bullying bosses have additional legal options to consider in light of this decision.

3.  AG Canada v. Johnstone

In this key case, the Federal Court of Appeal looked at the issue of “family status” under human rights legislation and concluded that family status includes childcare responsibilities and similar family care obligations.  This means that an employee with childcare responsibilities may, in certain circumstances, be entitled to protection and accommodation under applicable human rights legislation.  The Court set out a number of criteria that must be met and tried to make it clear that not every employee with some child care responsibilities will be able to request accommodation.  However, many employers are trying to deal with the issues pro-actively and are finding ways to accommodate the needs of employees with child care and elderly care responsibilities.

4.  Jan Wong and the Globe and Mail

Although I originally discussed this in 2013, the adjudicator’s decision was upheld in 2014 and Jan Wong was left facing a significant award as well as an award of legal costs.  The case illustrates a few points:

A.  The difficulty of proceeding in any kind of dispute in a unionized workplace without the backing and support of the union;

B.  The seriousness of confidentiality provisions in a settlement.  Employees who sign confidentiality provisions in settlements with their former employers can expect to face repercussions if they breach these provisions.  In some cases, a breach can mean a requirement to pay back to the employer the full amount of the original settlement.

5.  Fulawka v. Bank of Nova Scotia (Originally 2012 Ontario CA)

The Bank of Nova Scotia reached a settlement of a class action lawsuit with a group of bank employees claiming entitlement to overtime pay.  This settlement means that as many as 16,000 employees of the Bank of Nova Scotia could be entitled to overtime pay for overtime hours worked during the time period 2000 to 2013.  The affected employees were required to submit their claims by October 2014.  The case is a significant illustration of the availability of class actions to deal with widespread policies of large employers that may affect many different employees.  It is also which has caused employers and employees to examine their overtime hours and overtime policies.  Just because an employee is paid a salary does not mean that the employee can be required to work uncompensated overtime hours.


2014 Blog Posts – Selected Highlights

As well as they the key cases and issues set out above, I have highlighted a few of my blog posts from the past year.  In case you missed any of these, you might find them interesting:

1.  Hollander v. Tiger Courier Inc. (Sask C.A.)

It was not considered wrongful dismissal where a package of marijuana was delivered to an employee at his workplace.    The employee claimed that he knew nothing about the pot and that it wasn’t his…Fascinating reading.

2.  Rhebergen v. Creston Veterinary Clinic (B.C.C.A.)

The B.C. Court of Appeal upheld a very onerous non-compete provision for a veterinarian.  The clause prohibited a vet from setting up a practice within 25 miles of her employer’s clinic, for a period of 3 years.  It included huge financial penalties that would become payable in the event of a breach.  Surprisingly, the B.C. Court of Appeal upheld this clause.

3.  Steps to Take When You Are Fired

In this blog post, I have set out some things to consider when facing a dismissal situation.

4.  Are Employment Contracts Negotiable?

This post deals with aspects of employment contracts that can and should be negotiated.

5.  Poisoned Work Environment?  Not in this Restaurant.

Discussion of a recent Ontario Human Rights Tribunal decision addressing allegations of a poisoned work environment.


For 2015, I will aim to put up one or two new posts a month and I hope to send out an email update quarterly, or so.


Wishing everyone a Happy New Year.

CBC Decision to fire Jian Ghomeshi: More Details to Come?

Everyone is talking about the CBC decision to fire Jian Ghomeshi. Certainly, Canadians love a good sex scandal story as do readers across the world. In fact, I have already been contacted by several people in the U.S. and asked about the Canadian legal perspective in this type of case.  This story has legs.

But it is far too early to draw any definitive conclusions. I am not involved in this case in any way and have no first hand knowledge.  I am certainly in no position to assess whether or not Ghomeshi’s conduct was such that it actually substantiated the termination of his employment. But a few observations can be made to this point in time.

For one thing, unionized employees generally face quite an uphill battle in launching lawsuits. The Supreme Court of Canada has ruled, on a number of occasions, that unionized employees who are fired must use their grievance arbitration process. As a unionized employee, this means that Ghomeshi must proceed with a grievance arbitration with respect to the main  issue in his dispute – whether the CBC had just cause for terminating his employment.

Ghomeshi’s lawyers are obviously aware of this law. As a result, they have not sued for “wrongful dismissal.” Instead, they have framed the claim as one of “breach of confidence” and “defamation.” This is essentially a back-door effort to circumvent the existing case law and try to show that the essence of Ghomeshi’s case is not really wrongful dismissal.

Hard to imagine that much of the case will proceed successfully. In all likelihood, there will be a preliminary motion in which the CBC will seek to have most, if not all of the case thrown out. The basis for the motion will be the argument that this is really a lawsuit over the CBC decision to terminate Ghomeshi’s employment. The Statement of Claim itself alleges that the CBC fired Ghomeshi because it made a moral judgment about the appropriateness of Ghomeshi’s sexual conduct. For the most part, this type of allegation and dispute would be the type of issue that an arbitrator has the exclusive legal jurisdiction to adjudicate in a unionized context.

What about allegations of “breach of confidence?” In certain circumstances, dismissed employees can succeed with tort claims that are beyond the scope of the normal dismissal claim. But, for the most part, the court must find that the conduct is outside of the scope of the employment relationship.

Here the Statement of Claim alleges that Ghomeshi shared various details about his sexual practices, which it is alleged included consensual BDSM. The claim alleges that Ghomeshi shared this information with the CBC “voluntarily and in good faith” in the interest of working with the CBC to refute “false allegations.”

Does this duty of confidence normally exist? It might in certain limited circumstances. For the most part, when employees tell their employers about conduct in which they are involved, they are not normally immunizing themselves from their employer’s future assessment of the propriety of their conduct. To date, Canadian law has not normally recognized a principal of prophylactic, premature explanation as a means of inoculating oneself from future disciplinary action.

If the facts demonstrate that CBC either explicitly, or even implicitly, undertook to ensure confidentiality and agreed that it would not use Ghomeshi’s information for any other purpose, perhaps there might be an argument. But that does not even appear to be the allegation that is being made in the claim.

Overall, there may well be something to the suggestion that has been made by some commentators that the Statement of Claim is largely strategic, a further protective move aimed at discouraging any would-be complainants from coming forward under the threat of facing expensive litigation. But I did not read the Statement of Claim as one that was filled with defamatory statements made about other individuals. Nevertheless, given that the CBC is not likely to back away from the litigation any time soon, one can’t help but wonder about the real intended recipients of the claim and the real goals of the lawsuit.

As I mentioned, I am in no position to predict the final results or assess the various claims. But if at least part of the claim remains public (union arbitration hearings are not), salacious news stories will create lots of buzz. Canadians are bound to find the details of Ghomeshi’s alleged BDSM lifestyle titillating, particularly in the wake of the world wide success of 50 Shades of Grey.

The employment law question, assuming that Ghomeshi’s alleged conduct was in fact consensual, will be whether an employer can fire a high profile employee for legal personal behaviour to which it objects because of its concerns about its own profile and image. If the case is ever actually decided (rather than settled like most Canadian cases), the decision is likely to make for some fascinating and very entertaining reading.

LGBTQ Workplace Issues

It is Worldpride Week in Toronto, the first Worldpride celebration held in North America and one of the largest in the world of its kind.  The festival touts itself as honouring and celebrating the past, present and future for LGBTQ communities everywhere.  It is fitting that the celebration is taking place in Toronto.  Canada is one of the most welcoming countries in the world for LGBTQ communities.  In 2005, Canada became the fourth country in the world to legalize same sex marriage.  Canadian human rights legislation enshrines the prohibition against discrimination, and, of course, expressly references sexual orientation.

Despite the progress that Canada has made, are there still LGBTQ issues in Canadian workplaces?  Absolutely.  Sadly, it is extremely difficult to eradicate every possible manifestation of discrimination, especially those behaviours that are more subtle.  But the challenge facing employers is to take pro-active steps to ensure that workplaces are inclusive and welcoming, rather than merely responding to discrimination when it occurs.

With that in mind, I thought I might reference a few workplace issues that tend to arise that might affect LGBTQ employees.  The list is not all inclusive.

1.   Inclusive Language:  Canadian employers should make every effort to ensure that language used in the workplace is inclusive and non-discriminatory.  Some people may not be aware that they are offending others when they use certain words or expressions.  In other instances, written material, such as newsletters and brochures might not use inclusive language.

Employers should not wait to receive complaints about workplace language or about the lack of inclusivity in written materials.  It may be that the offended employees are not publicly out and would not want to be seen as the ones raising the issues.  But beyond that, it is not even a matter of who was offended on a particular occasion.  The challenge of ensuring an inclusive workplace means that employers must be vigilant about making sure that the workplace and the language used in it is welcoming at all times, even to those who might not be “visible.”

2.  Diversity Training:  Diversity training can help build awareness of LGBTQ issues in workplaces, just as it can also help build awareness of issues that affect other minority religious and cultural groups.   Diversity training can help build sensitivity for managers and supervisors in dealing with LGBTQ employees and can foster an appropriate and welcoming environment in Canadian workplaces.

3.  Publicizing LGBTQ Policies:  Employers should ensure that policies and promotional materials that are used in internal and external communications clarify employer support for LGBTQ employees.  This means that employee handbooks, for example, should mention the use of inclusive language as a policy, diversity training, if it is offered and the fact that the workplace welcomes LGBTQ employees just as it welcomes employees from all other walks of life.

4. Human Rights Policies:  Perhaps it goes with out saying that the Canadian human rights legislation, for example, the Ontario Human Rights Code prohibits workplace discrimination on the basis of sexual orientation.  Employers are required to have policies in place that provide procedures for investigating and handling complaints.  Any allegations of violations of such policies should be taken seriously and dealt with appropriately.

These are just a few of the many issues that LGBTQ employees might face.  During Worldpride week, one presentation on June 26, 2014 focuses on issues that LGBTQ lawyers face in working in the legal profession.  So it is clear that even among lawyers, there are still workplace issues affecting the LGBTQ community.

But overall, Canadians should be proud that these issues are being dealt with, both legislatively and otherwise, in a manner that is, generally, inclusive, fair and welcoming.  Wishing a Happy Worldpride Week to everyone.


Huge Aggravated Damages Awards For Reprehensible Conduct Upheld

Punitive and aggravated damages in employment cases are alive and well in Canada, thanks to a recent decision of the Ontario Court of Appeal.  The ground-breaking decision in Boucher v. Wal-Mart (2014) ONCA 419 upheld significant findings of a trial decision even while reducing some of the amounts awarded.  The end result was that an Ontario employee was left with a court award of more than $400,000 after proving the tort of intentional infliction of mental suffering.  It is a tremendously useful decision for employees, particularly those who are subjected to workplace abuse.  For employers, the decision demands increased vigilance in dealing with complaints of inappropriate workplace treatment made by employees.

The plaintiff, Meredith Boucher, worked for Wal-Mart for a total of 9 years.  She had a strong employment history and had been promoted on a number of occasions.  By the time the relevant events occurred, Ms Boucher was working as an assistant manager at a Wal-Mart location in Windsor.

According to the trial court decision and the decision of the Ontario Court of Appeal, Ms Boucher refused to go along with her manager’s request to falsify a temperature log in the store that tracked produce and dairy product temperatures.  After this refusal on her part, her manager, Jason Pinnock, became irate and vindictive.  Mr. Pinnock proceeded to launch a “torrent of abuse” against her which included belittling, humiliating and demeaning conduct.

Ms Boucher complained to the district manager.  Rather than deal with the complaints properly, the district manager shared the complaints with the manager, who became even more vindictive.  Ms Boucher complained again.  She was told that her complaints were “unsubstantiated,” (despite overwhelming evidence) and she was threatened with consequences for continuing to undermine her “manager’s authority.”

At trial, a jury awarded $1M in punitive damages to the plaintiff, payable by Walmart.  It also awarded a host of other damages including damages for intentional infliction of mental suffering and punitive damages against the manager, Mr. Pinnock, personally. It awarded aggravated damages against Wal-Mart.  In total, the trial award came to more than $1.4M.

In a 2-1 majority decision, the Court of Appeal upheld some of these awards, while reducing the punitive damages awards.

The Court had little difficulty upholding the finding that the actions of the manager and of Wal-Mart were “reprehensible.”  In the case of Wal-Mart, the Court upheld findings that Wal-Mart had refused to take the complaints seriously, dismissed them as unsubstantiated, threatened to dismiss the plaintiff for making the complaints, refused to discipline the manager and, overall, acted in a “reprehensible” manner.

However, the Court was still left with the question of what this is all worth under Canadian law.  While it upheld an award of $100,000 for damages for “intentional infliction of mental distress” against the manager personally, the Court reduced the award of punitive damages against him from $100,000 to $10,000, seemingly out of concern for the appearance of a double recovery.  This total of $110,000 against a manager for intentional infliction of mental distress is still one of the higher awards of its type in Canadian employment law.

The Court also upheld an award of $200,000 for aggravated damages against Wal-Mart, finding that some of Wal-Mart’s actions, including its threat of a reprisal, were particularly vindictive.

However, the Court refused to uphold a jury award of $1M in punitive damages against Wal-Mart, finding that this would be too high.  Instead, it reduced the award to $100,000, which is still a very significant amount in all the circumstances.


The bottom line here is that an employee facing abusive treatment wound up with an Ontario Court of Appeal award of more than $410,000 plus legal fees – in addition to damages for severance.

This case is of tremendous significance.  Some of the previous Canadian cases have involved facts that are far more extreme.  For example, in one case, Pate Estate, the plaintiff had been the subject of a wholly unsubstantiated criminal trial.

In this Wal-Mart case, the facts, unfortunately, are far more common, at least in my experience.  It is not always easy for employees to prove that they were subjected to abuse.  But many Canadian employees are faced with somewhat similar treatment.

Here, fortunately for Ms Boucher, the co-employees apparently testified and provided evidence that bolstered her claims.

It is also fair to say that Canadian employers, more often than not, when faced with these types of claims, will attempt to deal with them properly and fairly.  It is rare that an employer will take no action whatsoever and instead threaten the employee who has made the complaint.  However, this certainly does occur more often than one might think.

I regularly represent clients who face abusive scenarios at work, even if many of those scenarios are not quite as extreme as what occurred in the Wal-Mart case.  Employees will now have a much wider range of options available, including the possibility of obtaining much greater damages awards.

For employers, this decision will really serve as a serious warning that complaints of workplace harassment must be investigated and handled appropriately.  The consequences of not responding properly can be dramatic and very costly.

While Wal-Mart may well ask the Supreme Court of Canada to hear this case, it is far from certain that the Supreme Court would see any reason to intervene.  If the Supreme Court does choose to hear the case, it may well consider a cross-appeal to reinstate the $1M in punitive damages that had been awarded at trial, given all of the harsh factual findings in this case.  It seems unlikely to me that the Court would interfere with the aggravated damages awards that were upheld by the Ontario Court of Appeal.

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