Intentional Infliction of Mental Suffering

Not all behaviour that is hurtful or upsetting, even when it is intentional, will be considered an intentional infliction of emotional harm under the law. 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 it is likely to occur as a result of their actions.

In one Ontario Court of Appeal case, an employee of the corporation sued her employer. Her complaints stemmed from workplace harassment that was not sexual in nature. After refusing to falsify a temperature log, the plaintiff was formally disciplined. She was also subjected to ongoing harassment in the form of profane and disrespectful language.

She made what should have been a confidential complaint under a policy of the employer’s. Her concerns were not addressed. Her supervisor was also 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.

The plaintiff 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. He continued harassing her, vowing not to stop until she resigned.

After one particularly humiliating incident, the plaintiff again complained to management. She indicated that she would not be returning to work until her complaints were addressed. The complaints were never dealt with and the plaintiff never returned to work.

At trial, the plaintiff was awarded:

• the equivalent of 20 weeks' salary for constructive dismissal
• $1,200,000 in aggravated and punitive damages against her employer 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 the employer and supervisor, it upheld the damages in the amount of $100,000 against the supervisor for intentional infliction of mental suffering. It also upheld the aggravated damages of $200,000 against the employer. In so doing, the court noted that the awards against were "significant" compensation and all that was required to punish both the supervisor and the employer, and to denounce and deter their conduct.