Tests for Intentional Infliction of Mental Suffering and Constructive Dismissal clarified by the Ontario Court of Appeal in Colistro v Tbaytel

Yona Gal, J.D., LL.MAppeals, Civil Litigation, Employment & Wrongful Dismissal0 Comments

In Colistro v Tbaytel, 2019 ONCA 197, the Ontario Court of Appeal recently dismissed an appeal and cross-appeal in an employment dispute.

Appeal: Intentional Infliction of Emotional Suffering

In the appeal, the Ontario Court of Appeal confirmed that three elements comprise the tort of intentional infliction of mental suffering:

  1. Flagrant or outrageous conduct;
  2. Calculated to produce harm; and
  3. Resulting in a visible and provable illness.

Objective vs Subjective

Following its earlier decisions in Prinzo v Baycrest Centre for Geriatric Care and Piresferreira v Ayotte, the Ontario Court of Appeal held that the first and third element are objective, while the second is subjective.

The Court held that the second element requires the plaintiff to prove that “the defendant must have intended to produce the kind of harm that occurred or have known that it was almost certain to occur” [Boucher v Wal-Mart Canada Corp.].  It is insufficient to show only that the defendant ought to have known that harm would occur.

Knowledge of Kind of Harm is Sufficient

The Court further clarified that it is not necessary to prove that the defendant knew of the exact kind of harm that resulted.  It is sufficient if the defendant knows that the harm is serious psychological injury, even if the particular psychiatric illness is unclear.

Harm must be Intended or Known to be Substantially Certain

The Court distinguished the tort of intentional infliction of emotional distress from recovery for psychological injury in a negligence action.  While reasonable foreseeability may suffice for a negligence tort [Mustapha v Culligan of Canada Ltd.], it is not enough to ground an intentional tort.

The Court held that the harm must be intended or known to be substantially certain to occur.

Cross-Appeal: Constructive Dismissal

Following the Supreme Court of Canada’s decision in Potter, the Court of Appeal clarified that constructive dismissal may arise in two ways:

  1. A court identifies a breach of an express or implied term and finds that the breach was sufficiently serious to constitute constructive dismissal; or
  2. A court finds that the employer’s conduct generally shows that the employer intended not to be bound by the contract.  (This approach allows a court to find that an employee has been constructively dismissed without identifying a specific fundamental term of the employment contract.  It suffices that the employer’s treatment of the employee makes continued employment intolerable.)

Although the Supreme Court of Canada explained in Potter that the second approach requires “the cumulative effect of past acts” to be considered, the Ontario Court of Appeal held that a single act may constitute constructive dismissal under the second approach.  The Court of Appeal explained that its holding is in line with the emphasis in Potter on the flexible approach of the second approach.

The Court of Appeal also added that Ontario courts have found constructive dismissal by recognizing a general implied term: e.g., to “treat the employee with civility, decency, respect and dignity” [Piresferreira; Sweeting v Mok] or that “the work atmosphere be conducive to the well-being of its employees” [Stamos v Annuity Research & Marketing Services].  Accordingly, the Court of Appeal noted in obiter that it was open to the trial judge to consider finding a similar implied term and a sufficiently serious breach to constitute constructive dismissal.

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Yona Gal, J.D., LL.M

Yona Gal, J.D., LL.M

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