In the same decision, however, the court upheld the award of $100,000 in damages for intentional infliction of mental suffering against the manager, and the award of $200,000 in aggravated damages against Wal-Mart. In Colistro v Tbaytel, 2019 ONCA 197, the Ontario Court of Appeal recently dismissed an appeal and cross-appeal in an employment dispute. Harm must be Intended or Known to be Substantially Certain. The trial judge recognized a new freestanding tort of harassment and found that many of the managerial decisions made in relation to the plaintiff constituted harassment. the defendant owed a duty of care to the claimant to avoid the kind of loss alleged; the defendant breached that duty by failing to observe the applicable standard of care; such damage was caused, in fact, and law, by the defendant’s breach. Should parties or their lawyers prefer remote meetings, we are happy to arrange video or telephone conference calls. This means that the court must be satisfied through the factual matrix before it persuades the court that it should find the conduct, objectively viewed in all of the circu… Ontario Superior Court At trial, Ayotte was found personally liable for the torts of battery, intentional infliction of mental suffering, and negligent infliction of mental suffering. Some courts and commentators have substituted mental for emotional, but the tort is the same. In regards to the tort of intentional infliction of mental suffering, the court found that although this tort is available in the employment context, the claim was not made out on the evidence and the trial judge’s findings were overturned. One such remedy is the intentional infliction of mental distress. Your email address will not be published. The Elements of the Tort of Intentional Infliction of Mental Suffering: The tort of intentional infliction of mental suffering (“IIMS”) is not awarded often, and requires the Plaintiff to meet a very high threshold. In short, the law recognizes emotional distress as a state of mental suffering that occurs because of an experience caused by the negligence or intentional acts of another, usually of a physical nature. Our impressive track record speaks for itself. Therefore the discussion below focuses on what is required to establish the tort of an intentional infliction of mental suffering. While reasonable foreseeability may suffice for a negligence tort [ Mustapha v Culligan of Canada Ltd. ], it is not enough to ground an intentional tort. Duration. The Court of Appeal also added that Ontario courts have found constructive dismissal by recognizing a general implied term: e.g., to “treat the employee with civility, decency, respect and dignity” [Piresferreira; Sweeting v Mok] or that “the work atmosphere be conducive to the well-being of its employees” [Stamos v Annuity Research & Marketing Services].  Accordingly, the Court of Appeal noted in obiter that it was open to the trial judge to consider finding a similar implied term and a sufficiently serious breach to constitute constructive dismissal. The tort is a difficult one to make out for a plaintiff. This means you can sue someone for emotional trauma or distress if you can provide evidence to support your claims. Merrifield v. Canada (Attorney General), 2017 ONSC 1333, 2017 CarswellOnt 2927, at para 718. intentional infliction of mental suffering by Ayotte had been made out. Mental anguish and emotional distress are closely related in the context of a personal injury case. Gilbertson Davis LLP Arbitration and Mediation Chambers remains open during usual business hours. Find out if you can sue for emotional distress in Florida and what a personal injury lawyer can do for you. The Court held that the harm must be intended or known to be substantially certain to occur. (Hons), B.A., J.D. Emotional distress happens when a person struggles with mental anguish or pain and suffering after a traumatic event. The less onerous tort of harassment does not exist. Website designed and managed by Umbrella Legal Marketing, The Tort of Intentional Infliction of Mental Suffering, Coronavirus-Related Corporate Contract Litigation, Class Action Defence For Small & Mid Sized Companies, Prinzo v. Baycrest Centre for Geriatric Care. In June 2007, he brought an action against the RCMP and several individual members of the RCMP (the individual claims were later discontinued) seeking damages for intentional infliction of mental suffering due to alleged managerial bullying and harassment. Following the Supreme Court of Canada’s decision in Potter, the Court of Appeal clarified that constructive dismissal may arise in two ways: Although the Supreme Court of Canada explained in Potter that the second approach requires “the cumulative effect of past acts” to be considered, the Ontario Court of Appeal held that a single act may constitute constructive dismissal under the second approach.  The Court of Appeal explained that its holding is in line with the emphasis in Potter on the flexible approach of the second approach. The Court distinguished the tort of intentional infliction of emotional distress from recovery for psychological injury in a negligence action. In addition, we do not offer retainers in any cases where the amount in dispute is less than $50,000. The Court held that the second element requires the plaintiff to prove that “the defendant must have intended to produce the kind of harm that occurred or have known that it was almost certain to occur” [Boucher v Wal-Mart Canada Corp.].  It is insufficient to show only that the defendant ought to have known that harm would occur. The ONCA created the test for establishing this tort in Prinzo v. Baycrest Centre for Geriatric Care such that to make out the tort a plaintiff must prove conduct of the defendant that is: The first (1) and third (3) branches of the test are objective. The elements required to establish IIMS were confirmed by the Ontario Court of Appeal in Boucher v Wal-Mart Canada Corp., 2014 ONCA 419 at para 41, and require the Plaintiff to prove that: Emotional distress is a type of mental suffering or anguish induced by an incident of either negligence or through intent. Appeal: Intentional Infliction of Emotional Suffering. The bar is therefore necessarily high given the consequences to a defendant of a deliberately wrongful act. A case that demonstrates infliction of mental suffering due to workplace harassment includes a 1993 case of Boothman v Canada. Thank you for your interest in Gilbertson Davis LLP. The plaintiff sued the Crown and certain individual RCMP members. A court identifies a breach of an express or implied term and finds that the breach was sufficiently serious to constitute constructive dismissal; or, A court finds that the employer’s conduct generally shows that the employer intended not to be bound by the contract.  (This approach allows a court to find that an employee has been constructively dismissed without identifying a specific fundamental term of the employment contract.  It suffices that the employer’s treatment of the employee makes continued employment intolerable. We represent clients in complex commercial litigation matters, from contract and partnership disputes, to complex multi-party commercial claims. Where it is available it requires the following: At Milosevic Fiske LLP, our team of Toronto corporate commercial lawyers regularly represent clients in complex commercial litigation matters ranging from straightforward contract and partnership disputes to complex multi-party commercial claims including dealing with claims of oppression. Resulting in a visible and provable illness. Not all offensive conduct qualifies as intentional infliction of emotional distress, however. The courts recognize emotional distress as a type of damage that can be recovered through a civil lawsuit. In last week’s blog, we discussed several recent changes to the common law, and in part, the Ontario Court of Appeal (“ONCA”), decision in  Merrifield v. Canada (Attorney General) wherein the existence of a proposed tort of harassment was dealt with by the court. The ONCA clarified the subjective element but stating that it is not necessary to prove that the defendant intended to produce the specific psychiatric illness which resulted or to have known it was substantially certain to follow. Merrifield v. All rights reserved. © 2020 Milosevic Fiske LLP. Tags:constructive dismissal, Intentional Infliction of Mental Suffering, Ontario Court of Appeal, Your email address will not be published. In some cases, however -- particularly, cases alleging negligent (rather than intentional) infliction of emotional distress, courts will typically require some sort of physical injury as well. As a result, the appeal was allowed and the damages award vacated in its entirety. Baycrest Centre for Geriatric Care, a wrongful dismissal case that awarded damages, not only for 12 months’ pay in lieu of notice, but for aggravated damages in the amount of $15,000 for the tort of “intentional infliction of mental suffering”. Based on the ONCA decision in Piresferreira v. Ayotte, this second (2) element is not satisfied by evidence of foreseeability or reckless disregard. They concluded that the proposed elements of a tort of harassment were similar to those of the tort of intentional infliction of mental suffering, but less onerous, allowing for an easier route to a remedy. Mental Anguish and Emotional Distress. The Court distinguished the tort of intentional infliction of emotional distress from recovery for psychological injury in a negligence action.  While reasonable foreseeability may suffice for a negligence tort [Mustapha v Culligan of Canada Ltd.], it is not enough to ground an intentional tort. A wilfully false statement that comes to and causes mental anguish to another. The more intense the mental anguish, the better chance you have of proving that your emotional distress was severe enough to deserve compensation. LL.B., LL.M, Q.Arb Senior Counsel Commercial Litgation, C.I.P. The change is with respect to the test for intentional infliction of mental suffering, established by the Court of Appeal for Ontario in Prinzo v. Baycrest Centre for Geriatric Care, 2002 CanLII 45005 (ON CA). Please note that we do not offer contingency retainers. At ¶54 of her judgment in Dechant v Law Society, Justice Horner wrote of the "elements of the tort of intentional infliction of nervous shock" as follows: "In order to establish the tort, a plaintiff must establish that there was: (i) a deliberate, wilful misstatement of fact, … Yona Gal, J.D., LL.MMarch 28, 2019Appeals, Civil Litigation, Employment & Wrongful Dismissal0 Comments. Call us at 416-916-1387 or contact us online for a consultation. The ONCA decided that the tort does not currently exist in the common law of Ontario. ... Canada Insurance Claim Do the proven facts establish that the defendant(s) desired to produce the consequences that followed from their actions or that the results are known to be substantially certain to follow. The court examined the supervisor’s conduct since the employer was vicariously liable and not liable on its own. Emotional distress, also known as “ mental anguish,” is a non-physical and mainly psychological injury that may be asserted in civil lawsuits. ). The ONCA created the test for establishing this tort in Prinzo v. Baycrest Centre for Geriatric Caresuch that to make out the tort a plaintiff must prove conduct of the defendant that is: 1. flagrant and outrageous; 2. calculated to produce harm, and which; 3. results in a visible and provable illness. ), LL.B. 50-63 that an employee cannot pursue a claim for negligent infliction of mental suffering in the employment context. This means that the court must be satisfied through the factual matrix before it persuades the court that it should find the conduct, objectively viewed in all of the circumstances, is both flagrant and outrageous and resulted in a visible and proven illness. The tort of negligence for psychological injury is the best bet unless in an employment context when it is not available based on Piresferreira. As was recently stated by the ONCA in Colistro v. Tbaytel: The requirement that the defendant must have intended to produce the harm that occurred, or known that the harm was substantially certain to follow as a result of his or her conduct, is an essential limiting element of the tort and distinguishes it from actions in negligence. Most claims for emotional distress are due to negligent infliction, whereby the distress can be proven to be the direct result of a physical injury from a negligent party's action. The Court of Appeal found that the trial judge had based her finding of negligent infliction of mental suffering upon Ayotte’s breach of Bell Mobility’s Code of Business Conduct. The three-part test used to establish intentional infliction of mental suffering consists of i) flagrant or outrageous conduct, ii) with the intention of causing harm, iii) which results in a visible or provable illness for the plaintiff. The tort of intentional infliction of mental suffering has existed in Canada for many years. They also dealt with the difference between the suggested tort of harassment and the similar, but an alternative, tort of an intentional infliction of mental suffering. Privacy Policy / Disclaimer. Colistro was an employment case. Further, although the extent of the harm suffered need not be anticipated, the kind of harm must have been intended or known to be substantially certain to follow. Tort of intentional infliction of mental suffering The tort of intentional infliction of mental suffering was available to Piresferreira, but her evidence could not support it. The elements required to establish IIMS were confirmed by the Ontario Court of Appeal in Boucher v Wal-Mart Canada Corp., 2014 ONCA 419 at para 41, and require the Plaintiff to prove that: While employers will not have to defend against claims based on the tort of harassment for the time being, employees may still bring claims against employers and/or named individuals for alleged mental distress under the tort of intentional infliction of mental suffering (“IIMS”) (described below). Intentional infliction of emotional distress is a common law tort that allows individuals to recover for severe emotional distress caused by another individual who intentionally or recklessly inflicted emotional distress by behaving in an "extreme and outrageous" way. Partner, Recognition of Request for International Judicial Assistance. Boucher v Wal-Mart Canada Corp. It must always be remembered that the tort is aimed at conduct that is intentional, not conduct that is reckless or inadvertent. With intentional infliction of mental suffering, in addition to being “outrageous”, the defendant’s conduct must also be “flagrant”. The Court further clarified that it is not necessary to prove that the defendant knew of the exact kind of harm that resulted.  It is sufficient if the defendant knows that the harm is serious psychological injury, even if the particular psychiatric illness is unclear. (formerly A.I.I.C. It is now well established that a plaintiff can recover in negligence for psychological injury. In the appeal, the Ontario Court of Appeal confirmed that three elements comprise the tort of intentional infliction of mental suffering: Following its earlier decisions in Prinzo v Baycrest Centre for Geriatric Care and Piresferreira v Ayotte, the Ontario Court of Appeal held that the first and third element are objective, while the second is subjective. Flagrant and outrageous conduct consists of … If you require legal advice and representation with respect to an employment matter, please contact us for an initial consultation. Therefore it is not enough to demonstrate that the defendant ought to have known (foreseeability or recklessness) that harm would occur but rather an intention to produce the kind of harm that resulted or to have known that it was almost certain to occur. As with emotional pain and suffering, mental anguish refers to conditions including depression, anxiety, fright, grief and other significant emotional trauma. The tort of intentional infliction of mental suffering ("IIMS") is not awarded often, and requires the Plaintiff to meet a very high threshold. In addition, she found the defendants liable for intentional infliction of mental suffering. Interestingly, the ONCA also overturned the ONSC’s finding that the elements of the tort of intentional infliction of mental suffering were made out, finding that the RCMP’s conduct was not “flagrant and outrageous”, as required by the first part of the test. In Boucher v Wal-Mart Canada Corp. (Ont CA, 2014), a wrongful dismissal case, the Court of Appeal addressed the elements of the tort of intentional infliction of mental suffering: [41] The tort of intentional infliction of mental suffering has three elements. ... a person may act with intentional infliction of emotional distress (IIED). Intentional infliction of emotional distress generally involves some kind of conduct that is so terrible that it causes severe emotional trauma to the victim. One criterion of the Prinzo test is that, “the flagrant or outrageous conduct” must be “ calculated to produce harm. He was promoted to Corporal in 2009 and then to Sergeant in 2014. Danicic was willing to entertain a damages claim for harassment, more specifically in the form of the tort of “intentional infliction of mental suffering and emotional distress.” In order to prove such a tort, the following three elements must be present (as has been established in an earlier decision called Prinzo v. Required fields are marked *, I agree the Terms of Use on the Contact page. Kimberley S. J. Wilton, B.Sc. In such cases, the victim can recover damages from the person causing the emotional distress. The second branch of the test is subjective. Prinzo v Baycrest Centre for Geriatric Care, Stamos v Annuity Research & Marketing Services, Intentional Infliction of Mental Suffering, Request for International Judicial Assistance, Insurance, Reinsurance and Defense Litigation. And, even in the context of intentional infliction of mental suffering, then-Justice Beverley McLaughlin (now chief justice) awarded damages for the tort in Rahemtulla v. Vanfed Credit Union “notwithstanding the absence of expert medical evidence.” The tort of intentional infliction of mental distress has always been difficult to prove and, in a decision recently released, the Ontario Superior Court refused to find the … The manager was ordered to pay $100,000 for intentional infliction of mental suffering and $150,000 in punitive damages. Related Terms: Intentional Infliction of Emotional Distress. In the workplace, this can take the form of harassment, bullying, and/or violence (including verbal threats). It is enough to establish the more general intention of a serious psychological injury but not the specific condition that occurred. However, in Piresferreira, this court held, at paras. Perhaps, the Court was suggesting that the tort is applicable to deal with non workplace harassment, since this is already addressed through existing torts (intentional infliction of mental suffering) and employment legislation, including minimum employment standards, workplace health and safety legislation, and human rights legislation. The judge in the Merrifield case observed that it is similar to the tort of harassment, but with a couple of distinctions. Over the years, our team of exceptional litigators has seen it all and has successfully fought for our clients’ rights. The first (1) and third (3) branches of the test are objective. results in a visible and provable illness. The hope being of course that if intentional infliction of mental suffering is not met the tort of harassment will be. It must be proven that the result (illness) is substantially certain to follow and not just that it might follow. It will be interesting to follow both torts in the future to see if they stay distinct or slowly merge together. It is the second (2) test above that is the most difficult to prove, being a subjective requirement. Bell Mobility was found vicariously liable for the torts committed by Ayotte. Intentional Infliction of Mental Suffering. The Court noted that the test for intentional infliction of mental distress was for the Plaintiff to establish conduct that is: Flagrant and outrageous; Calculated to produce harm, and; Resulting in a visible and provable illness. There simply only needs to be proof that the actions caused infliction of nervous shock. In fact, both parties appealed. We noted that an appeal of the award, the highest in Canada at that time, was a virtual certainty. Was a virtual certainty retainers in any cases where the amount in dispute is less than $.... An employment matter, please contact us for an initial consultation fought for our clients ’ rights IIED.. 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