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Intentional Infliction of Mental Suffering

The tort of intentional infliction of mental suffering goes by many names - intentional infliction of emotional harm, intentional infliction of emotional distress and so forth. Basically, this tort involves intentionally causing severe emotional harm to another individual.

Not all behaviour that is hurtful or upsetting, even when it is intentional, will be considered an intentional infliction of emotional harm. When it does reach this level, a victim may be awarded damages as compensation for their distress.

Canadian courts have generally held that the behaviour complained of must be...

  • flagrant and outrageous
  • intended to produce harm, and
  • result in a visible and provable illness

Unlike claims of negligence, the wrongdoer must intend to cause the harm or know that is likely to occur as a result of their actions.

What the Courts are Saying

In the case of Boucher v. Wal-Mart Canada Corp an employee of the corporation sued both her immediate supervisor and the corporation for constructive dismissal and damages. Her complaints stemmed from workplace harassment that was not sexual in nature but, nonetheless, addressed in a number of workplace polices designed to protect employees.

After refusing to falsify a temperature log, Ms. Boucher was formally disciplined and subjected to ongoing harassment in the form of profane and disrespectful language. She made what should have been a confidential complaint under the corporation's Open Door Communication Policy.

Her concerns were not addressed and her supervisor was informed of the complaint, in breach of the policy. This led to even further abuse by her supervisor. Witnesses described the harassment as ferocious, humiliating, and horrific.

Ms. Boucher again complained about her supervisor's behaviour and continued to report ongoing incidents. She was informed that the matter had been investigated and that her complaints were unsubstantiated. Her supervisor was never disciplined and continued his harassing treatment, vowing not to stop until Ms. Boucher resigned.

After one particularly humiliating incident, Ms. Boucher again complained to management, indicating she would not be returning to work until her complaints were addressed. The complaints were never dealt with and Ms. Boucher never returned to work.

At trial, Ms. Boucher was awarded...

  • the equivalent of 20 weeks' salary for constructive dismissal
  • $1,200,000 in aggravated and punitive damages against Wal-Mart for the manner in which she was dismissed
  • $100,000 in damages from her immediate supervisor for intentional infliction of mental suffering
  • a further $150,000 in punitive damages from her immediate supervisor

The defendants appealed both their liability for intentional infliction of mental suffering and the aggravated and punitive damages awarded. They did not appeal the damages awarded for constructive dismissal.

While the Court of Appeal greatly reduced the punitive damages against both Wal-Mart and the supervisor, it upheld the damages in the amount of $100,000 against the supervisor for intentional infliction of mental suffering, as well as the aggravated damages of $200,000 against Wal-Mart. In so doing, the Court noted that the awards against both the supervisor and Wal-Mart were "significant" compensation and all that was required to punish both the supervisor and the corporation, and to denounce and deter their conduct.

Case Commentary

In this case, the actions of both defendants... demonstrated a culture of indifference to workplace policies. Employers should not only have policies dealing with violence, harassment, and other forms of mistreatment in the workplace, but should actively enforce such policies. Employers should not threaten to impose, or impose, discipline if and when workplace complaints turn out to be unfounded, as this will discourage employees from bringing forth good faith concerns. Discipline should only occur if, after a fair investigation, it is determined that an employee filed a meritless complaint for improper, vexatious, and/or bad faith purposes.

This case also serves as a warning to managers/ supervisors and employers that they may both be held accountable for behaviour towards employees that is abusive, unfair or insensitive.

~The Price of Workplace Bullying; Warner & Boyle - Borden Ladner Gervais LLP.

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