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., [1993] 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.”