Early Damage Awards

Awards made in an employment context were modest initially. $10,000 was assessed in a 1993 Federal Court decision in which a vulnerable employee had been severely harassed by her superior; ¹ $5,000 for damages was awarded in a 1994 case from Federal Court, in which the plaintiff was sexually harassed by her colleagues and supervisor; ² $20,000 was fixed as such compensation in a 1996 case in Alberta in which the plaintiff was subjected to a brash, contradictory and confrontational management style. The trial judge did note that this was a mid-range award. ³

This tort succeeded in a decision reviewed by the Court of Appeal in 2014, Boucher v Wal-Mart. Although the jury award at trial underwent a considerable revision on appeal, the plaintiff yet remained with an aggravated damage award of $200,000, punitive damages of $100,000 and a further sum for this tort of $100,000. ⁴

The tort claim was made against the manager, not Wal-Mart directly, although the Court of Appeal found Wal-Mart vicariously liable.

On appeal, Wal-Mart raised the issue of double recovery due to the award of aggravated damages and the tort claim. Laskin, J.A. found that this submission must fail. ⁵ The reasons given for upholding both awards were as follows:

1. The two awards serve different purposes in law;
2. The awards were against different defendants. The claim against the manager was for his misconduct while the claim against the company, based on her complaints about the manager, resulted in her constructive dismissal claim.
3. Wal-Mart’s own conduct justified the award of aggravated damages against it. It failed to take the plaintiff’s complaints seriously in the face of supporting evidence from co-workers. It failed to enforce its own workplace policies designed to protect a person in this circumstance. It threatened the plaintiff with retaliation. Boucher remained willing to remain working provided that Wal-Mart addressed her complaints about her manager.

In Strudwick, the motion judge had agreed that the tort claim of the intentional infliction of mental suffering was appropriate. The sum of $18,984 was awarded to compensate the plaintiff for cognitive behavioural therapy sessions.

On appeal, in 2016, the plaintiff successfully argued for an incremental sum to include the fees of a sign language interpreter and also additional compensation for emotional suffering. The trial judge’s concern over double recovery was reversed. The Court of Appeal allowed an additional $5,000 for this tort and the incremental sum for sign language costs. The total sum under this tort allowed was $35,294.

As to the issue of overlap of the three damage awards, the Court of Appeal noted that in view of the conduct of the employer and the impact upon the plaintiff, the overlap was not complete.

However, given the extreme bad faith and unfair treatment exhibited by Applied Consumer in the manner in which it dismissed Ms. Strudwick and its impact on her, I am of the view that the motion judge erred in holding that there was a complete overlap.

A similar award of $20,000 for this tort was made in a 2005 case. ⁶

As discussed elsewhere, this tort and the negligent variety, where allowed, may lead to substantial claims for past and future lost income, given a serious medical impairment.