Saturday, 10 September 2016

Emotional Upset Not Enough for Award of General Damages: ONCA

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If being accused of breaking the law “takes a serious toll” on you, causing you “emotional upset”, can you successfully sue the person that caused that harm?

It is trite to observe that being accused of something that you did not do is likely to cause feelings of serious upset. In employment law, this scenario arises most frequently when an employer alleges “just cause” for the termination of an employee’s employment. But what do the courts have to say about this issue? Can someone sue for emotional upset?

In the case of 495793 Ontario Ltd. (Central Auto Parts) v. Barclay, 2016 ONCA 656 (CanLII), released September 2, 2016, the Court of Appeal for Ontario confirmed that a plaintiff’s testimony of emotional upset, being unsupported by medical evidence, was insufficient to ground the substantial award of non-pecuniary damages made by the trial judge, the Honourable Regional Senior Justice Helen M. Pierce. (See reasons for decision reported at 2014 ONSC 3517.)

Facts

On an April morning in 1999, eleven police officers, headed by the Thunder Bay Police, arrived at the premises of Central Auto Parts in Thunder Bay to execute a search warrant. The lead investigator was one of the defendants, Frank Barclay.

The police closed the business, sent the staff home, and commenced their search for stolen cars and parts under the inquisitive eyes of the local press. Shortly after the police arrived, Rick Mercuri, one of the owners of Central, spoke to his lawyer, then accompanied the police to the police station where he gave a voluntary, videotaped statement. After the statement, the police and Mr. Mercuri returned to the Central Auto Parts facility where the search continued until about 9 p.m. The fact of the search and the allegation that the police believed there were stolen cars and parts on the premises were widely reported by the local press. About a month later, Rick Mercuri was charged with ten counts of possession of stolen property contrary to the Criminal Code. An eleventh charge of possession of stolen property was added later. The fact that charges had been laid was also reported in the press.

Some six years after the charges were laid, and after $268,937 in legal fees had been paid, the matter came to an end. News of the acquittal was published in the local press.

The plaintiffs claimed that the police conduct of the investigation was negligent. They sued for, amongst other things, non-pecuniary (‘pain and suffering’) damages.

Following the trial of the civil case Justice Pierce awarded the plaintiffs $200,000 in non-pecuniary damages.

The police appealed.

Decision

In allowing the appeal in respect of the award of non-pecuniary damages, the Honourable Justice Russell G. Juriansz, who also authored the decision in Piresferreira v. Ayotte, 2010 ONCA 384, wrote the following on behalf of the Court of Appeal:

[109] … the evidence did not support the trial judge’s substantial non-pecuniary award of $200,000. The trial judge observed that there had been a “human cost to Mr. Mercuri in terms of his loss of reputation and emotional upset”. She made no finding that Mr. Mercuri’s “emotional upset” rose to the level of personal injury. There was nothing in the evidentiary record that would support such a finding.

[110] The distinction between psychological or emotional upset and a disturbance that rises to the level of personal injury must be kept in mind, as the Chief Justice explained in Mustapha v. Culligan of Canada Ltd, 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 9. She said that “[p]ersonal injury at law connotes serious trauma or illness” and added that “[t]he law does not recognize upset, disgust, anxiety, agitation or other mental states that fall short of injury.”

[111] Iacobucci J. in Odhavji Estate v. Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 41, said: “it is well established that compensation for psychiatric damages is available in instances in which the plaintiff suffers from a “visible and provable illness” or “recognizable physical or psychopathological harm”. He also said that “as the law currently stands, that the appellant has suffered grief or emotional distress is insufficient.”

[112] Here, the trial judge found Mr. Mercuri suffered “emotional upset” and summarized the basis for that conclusion. The charges had hung over his head for six years. He testified he was drawn away from his business pursuits and had to sell his vehicle. He felt humiliated and felt that no one would trust him again. He remarked, “it takes a toll on you”. He was concerned about his aging father’s health and worried about his family, his business, his employees and their families. He felt his parents suffered the brunt of it, but his children were also affected at school. He felt that every question from a customer about whether they would have a problem with a part or whether a cop would seize it was like a “punch in the face”. Even the acquittal did not produce vindication from the cloud he lived under, in a small city, until the charges were dismissed, as doubt in the community still lingers.

[113] As frustrated and upset as Mr. Mercuri may have been as a result of the charges against him, his unsupported testimony of emotional upset was insufficient to ground the substantial award of non-pecuniary damages the trial judge made.

The appeal of such award was therefore allowed. There was no immediate mention of to whom costs were to be awarded.

Commentary

I appreciate that the Central Auto Parts case is not an employee law case. That said, this blog has looked at cases outside the traditional “employment law” realm on occasion for decisions that will no doubt have a bearing on employment law issues.

As mentioned at the outset of this post, there are many things that can happen both during one’s employment and at the time that it is ended that can cause emotional upset. Indeed, the simple fact of losing one’s job is often enough to prompt most employees to ask whether they can sue for the “emotional upset” of losing their job. (Hint: The answer is typically no.)

To be honest, this decision does not really surprise me. Prior to this decision and directly on point with respect to employment law is the decision of Brien v. Niagara Motors Limited, 2009 ONCA 887 (CanLII) in which the Court of Appeal earlier held as follows:

[3] … Although the appellant’s conduct in wrongfully alleging misconduct against the respondent was improper, any claim for punitive damages based on that conduct was abandoned before the trial. While the respondent’s misconduct in this respect could have led to a proper award of mental distress damages as defined in Keays, the mental distress that the respondent suffered upon her termination and the manner of that termination was not of the nature and scope to qualify for compensatory damages in accordance with that decision, as the respondent did not seek any medical attention, professional assistance or undergo any therapy for her mental distress.

In short, courts across Ontario have been saying for quite some time: No medical evidence? No damages. (For a contrary view see the opinion of the Saskatchewan Court of Appeal in Capital Pontiac Buick Cadillac GMC Ltd v Coppola, 2013 SKCA 80 (CanLII), summarized by this blog in the post Moral Damages for Manner of Dismissal - Meeting the Evidentiary Burden. Also have a look at the post for my earlier comments on this issue in general.)

Takeaways for Employees with Labour Pains

The takeaway for employees with labour pains is that if you if you believe that your case merits an award of damages for “emotional upset”, then you are going to need to lead a sufficient amount of medical evidence. For that, you are going to need a lawyer experienced in both employment law and personal injury law.

The professional, experienced and cost-effective employment lawyers for employees at Ottawa's Kelly Santini LLP are experienced in both employment law and personal injury law. Contact us and we would be happy to discuss your case and how we can be of service to you.

Takeaways for Employers with Labour Pains

The takeaway for employers with labour pains is really two-fold. First, while the law is clear that employers are generally allowed to terminate the employment of any of their employees without reason or cause, taking such a course of action in a heavy handed or unfair manner may expose you to claims of more than just wrongful dismissal.

Second, even the most prudent employer will likely be unable to avoid a claim of bad faith, whether warranted or not. In those cases, you are going to need a lawyer that has experience with both employment law and claims of personal injury. The professional, experienced and cost-effective employment lawyers for employers at Ottawa's Kelly Santini LLP are such lawyers and our colleagues who defend personal injury claims are often recognized as among the best in Canada. (For example, Pat Santini is recognized as a leading insurance litigator by L'Expert, and since 2006 he has been selected by his peers to be included in "The Best Lawyers in Canada.") If a former employee is making a claim against your business or organization, we would be happy to be of service to you.

Contact Me

To reach the author of this blog, Sean Bawden, email sbawden@kellysantini.com or call 613.238.6321 x260.

Sean P. Bawden is a partner with Kelly Santini LLP, located in Ottawa, Ontario, Canada. He practices in the areas of employment law and civil litigation. He has also taught Trial Advocacy for Paralegals and Small Claims Court Practice at Algonquin College in Ottawa.

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As always, everyone’s situation is different. The above is not intended to be legal advice for any particular situation. It is always prudent to seek professional legal advice before making any decisions with respect to your own case.

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