As noted above, the Ontario Court of Appeal determined that such a tort claim was not a viable tort. ¹

The Sulz case in British Columbia found the employer vicariously responsible by operation of statute for the conduct of one of its employees against whom the plea of the negligent infliction of mental distress was brought. This remains the leading case on this subject. The case went to the B.C. Court of Appeal in 2006 and remains the law today. Liability was not an issue on appeal. ²

The damage claim awarded at trial was $950,000, consisting of a past wage loss of $225,000, a future wage loss of $600,000 and a general damage award of $125,000. The claim was based the verbally offensive conduct of the personal supervisor and two others. The Minister was found to be vicariously liable.

A similar claim based in negligence was allowed by the Federal Court of Appeal in an appeal dealing with lower court's qualified acceptance of a certified class action, based in negligence. ³ The Court distinguished the case from the Ontario line of cases denying the right to sue the employer in negligence on the basis that the facts of the case before it, as this showed that the proposed class members were not employees but rather statutory office holders. The employment relationship was not based on a contract but rather was "fashioned by statute". ⁴