As regular readers of this blog will know, this blog has long taken issue with the Court of Appeal for Ontario's decision in Piresferreira v. Ayotte, 2010 ONCA 384 (CanLII). The court's decision - that employees cannot sue for an employer's negligent infliction of mental suffering - has previously been considered in the post Tort Damages Place in Wrongful Dismissal Cases.
Although I have previously argued that the Piresferreira decision was legally wrong and, in fact, contrary to other appellate decisions including Sulz v. Canada, 2006 BCCA 582 and Queen v. Cognos, (the Supreme Court of Canada did not disturb or address the trial judge's award of $5,000 in damages for "emotional stress" in its decision in Queen v. Cognos Inc.,  1 SCR 87,) this post will focus on a different issue: whether the decision highlights the differences to which claims of a hostile work environment can be put.
As I will argue below, it my thesis that contrary to Court of Appeal's position that it is "unnecessary and undesirable to expand the court’s involvement" into questions of a hostile work environment was wrong. While Ontario’s courts have been unwilling to accept claims of a hostile work environment when wielded as a “sword”, Ontario courts have shown that they are prepared to consider such claims when employees advance such arguments as a “shield.”
No Swords: The Decision in Piresferreira
Before one can appreciate what I mean by claims of a hostile work environment being used as a shields not swords, one needs to appreciate what the decision in Piresferreira said.
Writing for the unanimous Court of Appeal for Ontario, the Honourable Justice Russell Juriansz found that the tort of negligent infliction of mental of mental suffering was not available to Ontario employees. (See paragraph 42 of the decision.)
In reaching that decision Justice Juriansz found that it was reasonably foreseeable that Piresferreira [the employee] would experience mental suffering from the abusive manner in which Ayotte supervised her during her employment. However, on the issue of whether Ms. Piresferreira could sue for the damages that she suffered as a result of that abusive behaviour Justice Juriansz wrote the following:
 In a case in which the employer’s allegedly tortious behaviour includes the termination of the employee, compensation for mental distress is available under the framework the Supreme Court has set out in Honda. In a case in which the employer does not terminate the employee, the employee who is caused mental distress by the employer’s abusive conduct can claim constructive dismissal and still have recourse to damages under the Honda framework. Recognizing the tort [of negligent infliction of mental suffering] in the employment relationship would overtake and supplant that framework and all of the employment law jurisprudence from which it evolved. In other words, in the dismissal context, the law already provides a remedy in respect of the loss complained of here. The recognition of the tort is not necessary.
 That leaves the category of cases in which the employee suffers mental distress from employer conduct that would not provide the grounds for a claim of constructive dismissal. Perhaps it can be said, as the respondents submit, that it is not foreseeable that an employee would suffer mental distress from criticism of poor work performance that is constructive. However, much disagreement can be anticipated as to whether criticism is “constructive”, whether work performance is “poor”, and whether the tone of the former was appropriate to the latter. The existence of the tort would require the resolution of such disputes. The court is often called upon to review the work performance of employees and the content and manner of their supervision in dismissal cases. It is unnecessary and undesirable to expand the court’s involvement in such questions. It is unnecessary because if the employees are sufficiently aggrieved, they can claim constructive dismissal. It is undesirable because it would be a considerable intrusion by the courts into the workplace, it has a real potential to constrain efforts to achieve increased efficiencies, and the postulated duty of care is so general and broad it could apply indeterminately.
Put another way, what the Court of Appeal said in Piresferreira was that an employee cannot sue for damages caused by an employer's abusive conduct because it is "unnecessary and undesirable to expand the court’s involvement in such questions."
But Maybe Shields: The Decision in Evans
In the 2008 case of Evans v. Teamsters Local Union No. 31, 2008 SCC 20 (CanLII),  1 SCR 661, (a decision not mentioned in the Piresferreira decision notwithstanding being decided over two years earlier) the Supreme Court of Canada held that a dismissed employee could not be made to mitigate his damages by returning to "an atmosphere of hostility, embarrassment or humiliation." On this point the Honourable Justice Michel Bastarache, writing for the majority of the Supreme Court, held as follows:
 I do not mean to suggest... that an employee should always be required to return to work for the dismissing employer and my qualification that this should only occur where there are no barriers to re-employment is significant. This Court has held that the employer bears the onus of demonstrating both that an employee has failed to make reasonable efforts to find work and that work could have been found (Red Deer College v. Michaels,  2 S.C.R. 324). Where the employer offers the employee a chance to mitigate damages by returning to work for him or her, the central issue is whether a reasonable person would accept such an opportunity. In 1989, the Ontario Court of Appeal held that a reasonable person should be expected to do so “[w]here the salary offered is the same, where the working conditions are not substantially different or the work demeaning, and where the personal relationships involved are not acrimonious” (Mifsud v. MacMillan Bathurst Inc. (1989), 70 O.R. (2d) 701, at p. 710). In Cox [1999 BCCA 640 (CanLII)], the British Columbia Court of Appeal held that other relevant factors include the history and nature of the employment, whether or not the employee has commenced litigation, and whether the offer of re-employment was made while the employee was still working for the employer or only after he or she had already left (paras. 12-18). In my view, the foregoing elements all underline the importance of a multi-factored and contextual analysis. The critical element is that an employee “not [be] obliged to mitigate by working in an atmosphere of hostility, embarrassment or humiliation” (Farquhar [v. Butler Brothers Supplies Ltd. (1988), 23 B.C.L.R. (2d) 89 (CA), at p. 94]), and it is that factor which must be at the forefront of the inquiry into what is reasonable. Thus, although an objective standard must be used to evaluate whether a reasonable person in the employee’s position would have accepted the employer’s offer (Reibl v. Hughes,  2 S.C.R. 880), it is extremely important that the non-tangible elements of the situation — including work atmosphere, stigma and loss of dignity, as well as nature and conditions of employment, the tangible elements — be included in the evaluation.
My Question: Why Only Shields and Not Swords?
My penultimate questions are these: Does the above-referenced passage from Evans not require the judge hearing the case to determine whether the working atmosphere was hostile, embarrassing or humiliating? And is not the judge further required to determine whether a "reasonable person" would have tolerated the situation?
My final question is this: If a judge is required to undertake the above-referenced analysis when an employee alleges that he or she should not be made to mitigate his damages by returning to a hostile, embarrassing or humiliating work environment (thus using the allegations as a "shield") why is it "unnecessary and undesirable to expand the court’s involvement in such questions" when the employee puts forwards the allegations as a claim, thus using the allegations as a "sword?"
The question that I leave to readers is this: has the time come to recognize the tort of negligent infliction of mental suffering in the workplace? For those wishing my arguments in favour of recognizing such a cause of action, consider my earlier post: Tort Damages Place in Wrongful Dismissal Cases especially under the heading "Why tort damages are necessary and why you have to prove them."
Responses welcomed below.
To reach the author of this blog, Sean Bawden, email email@example.com or call 613.238.6321 x260.
Sean P. Bawden is a partner in 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 Testified Court Practice at Algonquin College in Ottawa.--
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.