Piresferreira v. Ayotte, 2010 ONCA 384 (CanLII): The Court of Appeal rejected a duty of care on employers to shield employees from the acts of other employees that might cause mental suffering, saving employers from tort claims in cases to come later that decade. [Ontario] TOR.V.7.b.ii Subject Title: Torts Classification Number: V.7.b.ii Defamation -- Damages -- Types of damages available -- Aggravated and punitive damages Plaintiff was editor of newspaper for Sikh community -- Defendants published three articles in their newspaper that called plaintiff liar and made other false statements … 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. What the employee can likely no longer do is claim tort damages for the tort of harassment, which was only recently recognized by the Ontario court and about which I wrote in my post: Ontario … Prosser, W & Keeton, P (2004), Prosser and Keeton on Torts. 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: 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.". at para.76. However, it is sufficient that … (4th) 665, at paras. 24 th Edition, Paperback. Ibid. For instance, consider the case Piresferreira v. Ayotte (2010 ONCA 384). recognition of such a duty and, most recently, the Ontario Court of Appeal in Piresferreira v. Ayotte, 2010 ONCA 384 (“Piresferreira”), expressly rejected the proposition that a duty to provide a psychologically safe work environment exists or ought to be recognized at common law. On this point the Honourable Justice Michel Bastarache, writing for the majority of the Supreme Court, held as follows: My Question: Why Only Shields and Not Swords? 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. counsel for Ms. Piresferreira. In the second step of the test, Tysoe J. had to determine whether the federal government was acting in a policy or operational capacity. . Piresferreira v. Ayotte, 2010 ONCA 384 (CanLII). Culligan of Canada, 2008 SCC 27, Piresferreira v. Ayotte, 2010 ONCA 384, Potter v. New Brunswick Legal Aid Services, 2015 SCC 10, Rules of Civil Procedure, Rule 49.10(2) Plate v. Atlas Copco Canada Inc., 2019 ONCA 196 5 th Edition. Ibid. Piresferreira v. Ayotte , 2010 ONCA 384 Tags: Ontario Court of Appeal , Supreme Court of Canada , Provincial Crown , Negligent Infliction , Mental Suffering S.C.J.) Abraham, S (2012), The Forms and Functions of Tort Law. The Court noted that Ontario courts had already recognized three of four privacy torts long recognized in the U.S.: I look forward to reading the Supreme Court of Canada decision in David Matthews v. Ocean … As regular readers of my employment-law blog, (Labour Pains (previously the Law Blog for the Suddenly Unemployed)) will know, I have long taken issue with the Court of Appeal’s decision in Piresferreira v.Ayotte, 2010 ONCA 384.In that case, the Court of Appeal for Ontario held that the tort of negligent infliction of mental suffering was not available in the employment context. (See paragraph 42 of the decision.). In Piresferreira v Ayotte, 2010 ONCA 384, Mr. Ayotte, the Plaintiff’s manager who had a history of aggressive behaviour and verbal abuse, yelled and swore at Ms. Piresferreira because she failed to schedule a client meeting. That decision in Piresferreira is applicable when employees try to use such claims as a sword. 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. 51 Fidler, supra note 49 at para.56-57. C.A.) 54 Lumsden v. Manitoba, 2009 MBCA 18 (CanLII) at paras.68-71, 75 (Damage award of $25,000 for mental distress); Saunders v. RBC Life Insurance Co., 2007 N.L.T.D. Failure to apologise after altercation does not satisfy element 1 – high threshold for flagrant and outrageous. The case, Piresferreira v. Ayotte, 2010 OCA 384 (QL) was an appeal from a lower court decision which granted a range of damages to the employee amounting to close to $500,000. Claims of a Hostile Work Environment: Shields not Swords? Piresferreira v. Ayotte, 2010 ONCA 384 If you have any questions regarding this Law Bulletin, please contact a member of the Labour and Employment Group. 78-79, leave to appeal refused, [2010] S.C.C.A. 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? Ontario employers can rest easy as a result of the Ontario Court of Appeal’s recent decision in Piresferreira v. Ayotte, 2010 ONCA 384. C.A. In the 2008 case of Evans v. Teamsters Local Union No. 104 (CanLII) at paras.165-166 (Damage award of … The appeal revisited the ... Ayotte, 2010 ONCA 384. Ibid. The Court noted that Ontario courts had already recognized three of four privacy torts long recognized in the U.S.: For my thoughts upon that issue, I would direct readers to the post Tort Damages Place in Wrongful Dismissal Cases. (4th) 665, at paras. [3] Piresferreira v Ayotte, 2010 ONCA 384. When Ms. Piresferreira tried to explain herself to Mr. Ayotte, he pushed her. 34 Dobreff v. Davenport, 2009 ONCA 8 (CanLII) at para.2 (“We are also satisfied that s. 46.1 of the Human Rights Code creates a new substantive jurisdiction and that it should be read prospectively only”). Her manager then struck her in … 165 I find that Mr. Yenovkian’s conduct was calculated to produce the kind of harm suffered by Ms. Gulian, or he knew that it was substantially certain to follow: Piresferreira v. Ayotte, 2010 ONCA 384 (Ont. 5 th Edition. As established in Court, Ayotte was a … Piresferreira v. Ayotte, 2010 ONCA 384 The Court of Appeal recently decreased a large claim won by an employee who was constructively dismissed and suffered from post-traumatic stress disorder as a result of her abusive manager. [4] Quoting from Wall v. University of Waterloo, (1995), 27 CHRR D/44 (Ontario Bd. . 17 2002 CanLII 45005 (ON CA). [2] Brick and Allied Craft Union of Canada v Rise Real Estate Inc., 2014 CanLII 66605. It is possible that the fact that a perpetrator honestly “didn’t mean to hurt anybody” might be a valid defence; even if the perpetrator was “recklessly indifferent” to the potential harm (see Piresferreira v. Ayotte, 2010 ONCA 384). Employees Cannot Sue for Constructive Dismissal Caused by Chro... Decision No. 165 I find that Mr. Yenovkian’s conduct was calculated to produce the kind of harm suffered by Ms. Gulian, or he knew that it was substantially certain to follow: Piresferreira v. Ayotte, 2010 ONCA 384 (Ont. [Ontario] TOR.V.7.b.i Subject Title: Torts Classification Number: V.7.b.i Defamation -- Damages -- Types of damages available -- General damages Plaintiff was editor of newspaper for Sikh community -- Defendants published three articles in their newspaper Piresferreira v. Ayotte, 2010 ONCA 384. [2] Brick and Allied Craft Union of Canada v Rise Real Estate Inc., 2014 CanLII 66605. In Piresferreira v. Ayotte, 2010 ONCA 384, the court reversed an earlier decision by the Ontario Superior Court and significantly reduced the damages awarded by the trial judge in 2009. Piresferreira. 4 th Edition (Concepts and Insights Series); Paperback. factual background Marta Piresferreira was an account manager for Bell Mobility Inc. (“Bell”). 31, 2008 SCC 20 (CanLII), [2008] 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 tomitigate his damages by returning to "an atmosphere of hostility, embarrassment or humiliation." at para.59. Vallee J. adopted the definition of “reckless” from Piresferriera v. Ayotte, 2010 ONCA 384: “‘proceeding in the face of subjective awareness that harm of the kind that resulted was substantially certain to follow . P employee of Bell Mobility; manager was aggressive. 50 Ibid. Failing to be transparent or honest with the accused employee during the investigation process: Elgert; Karmel; Piresferreira v Ayotte, 2010 ONCA 384, 319 DLR (4th) 665; Failing to provide particulars of allegations to an accused employee: Chapell; Elgert; Failing to provide the accused employee with an adequate opportunity to explain or respond: Doyle; Elgert; Lalonde; Chapell; Failing to … 164 The test for intentional infliction of mental suffering as set out by the Court of Appeal in Piresferreira v. Ayotte, 2010 ONCA 384 (Ont. He referred to Piresferreira v. Ayotte, 2010 ONCA 384 (CanLII), 319 D.L.R. Employment Law … In 2005, she suffered from increasingly strong verbal abuse from her manager. Ayotte (2010) * Flagrant and Outrageous Conduct * Reckless Disregard – harmful consequence is reasonably foreseeable by the perpetrator * Both elements are satisfied by Anthony’s behaviour in the [Appendix 1] practical example * CASE EXAMPLE: Piresferreira v. Ayotte (2010) * Piresferreira (P) had been Account Manager for Bell for 10 years under supervision of Ayotte (A), who was a critical, … P: 604.631.6718 E: pgallivan@lawsonlundell.com • Rob Sider P: 604.631.6722 E: rsider@lawsonlundell.com • Paul Smith P: 867.669.5532 E: psmith@lawsonlundell.com Team Members Name Phone Email … Ayotte, 2010 ONCA 384. Franklin, A & Cardi J (2008), Gilbert Law Summaries on Torts. 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). 7 intentional bombardment of the employee with calls after she has commenced medical leave and was known to be medically not fit to work. at para.47; See also Piresferreira v. Ayotte, 2010 ONCA 384 (Can LII); See also Honda, supra note 31. Paperback. Intention under element 2 is subjective, not objective – cannot say manager ought to have foreseen consequences to P (Piresferreira v. Ayotte, 2010 ONCA 384) Directors and officers can be personally liable to pay for labour code violations if the corporation is unable to pay (because of bankruptcy, for example). at para.76. Here a Bell employee was assaulted by her manager who then placed her on a PIP as a means of trying to fend off any potential complaint. She had been under the supervision of the defendant, Richard Ayotte, since 1997. In Piresferreira v Ayotte, 2010 ONCA 384, Mr. Ayotte, the Plaintiff's manager who had a history of aggressive behaviour and verbal abuse, yelled and swore at Ms. Piresferreira because she failed to schedule a client meeting. Piresferreira. The above is not intended to be legal advice for any particular situation and it is always prudent to seek professional legal advice before taking any decisions on one’s own case. Here a Bell employee was assaulted by her manager who then placed her on a PIP as a means of trying to fend off any potential complaint. In some cases, this may be difficult to prove. Key Contacts • Patricia Gallivan, Q.C. Merrifield v. Canada (Attorney General), 2019 ONCA 205, 2019 CarswellOnt 3716 2019 ONCA 205, 2019 CarswellOnt 3716, 145 O.R. Her manager Richard Ayotte was described as “critical, loud, demanding and aggressive”. 35 Stokes-and-St. Clair College, 2010 ONSC 2133 (CanLII) at paras.2, 15, 23-24; See also Mackie v. Joe Conforti examines the recent Ontario Court of Appeal decision in Piresferreira v. Ayotte, which rejected a general duty on employers to take care to shield their employees during the entire course of employment from acts in the workplace that might cause mental suffering. The plaintiff, Marta Piresferreira, was employed as an account manager at Bell Mobility in Ottawa. Ontario courts have shown that they are are prepared to consider such claims when employees advance such arguments as a shield. v. Ayotte (ONCA 2010) [Bell Mobility, description of P, “battery”, vicarious liability] *P fails test in this case(1) TJ put too much weight on failure to apologize (what case law considers to be F&O is expanding but this too far) (2) Not established. As regular readers of my employment-law blog, (, Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (CanLII), Labour Pains (previously the Law Blog for the Suddenly Unemployed), Wal-Mart Rolls Back Award of Punitive Damages, Massive Aggravated Damage Awards Contain a Punitive Element, ONSC Awards $100,000 for Tort of Harassment, Merrifield v The Attorney General, 2017 ONSC 1333 (CanLII), Exclusion Clause Insulates Against Tort Claims, Richards v. Media Experts M.H.S. [1] Sigrist and Carson v London District Catholic School Board, 2008 HRTO 14 at para 42. Subscribe via Email. Prosser, W & Keeton, P (2004), Prosser and Keeton on Torts. However, the Court of Appeal overturned the original decision and the partner’s as well. at para.47; See also Piresferreira v. Ayotte, 2010 ONCA 384 (Can LII); See also Honda, supra note 31. (Ont. Ontario employers can rest easy as a result of the Ontario Court of Appeal’s recent decision in Piresferreira v. Ayotte, 2010 ONCA 384. 1227/19, 2019 ONWSIAT 2324 (CanLII), Exclusion Clause Insulates Against Tort Claims, Richards v. Media Experts M.H.S. Legislation / Case Law At the outset, we note that Dr. Shain is misguided in arguing that there is one general “legal duty” on … at para 78. Occupational Health and Safety Statutes [3] Piresferreira v Ayotte, 2010 ONCA 384. 172002 CanLII 45005 (ON CA). v. Ayotte [2010] ONCA. No. When the matter was put before the Court, Bell was ordered to pay $45,000.00 to its employee due in no small part to the bad faith manner in which the PIP was imposed by its … The Facts The facts in Piresferreira are straight-forward:3 • Ms. Piresferreira was an account manager, employed by Bell Mobility for approxi-mately 10 years starting in 1995. Abraham, S (2012), The Forms and Functions of Tort Law. The case, Piresferreira v. Ayotte, 2010 OCA 384 (QL) was an appeal from a lower court decision which granted a range of damages to the employee amounting to close to $500,000. 1 [2010] ONCA 384 (decision released on May 28, 2010). in circumstances involving workplace harassment. 347 Piresferreira v. 283, and instructed himself that the second element is not satisfied by evidence of foreseeability or reckless disregard: “Foreseeability, which indicates only that a result may follow, is much less than knowledge that a result is substantially certain to follow”. 27 is: flagrant or outrageous conduct; calculated to produce harm; and; resulting in a visible and provable illness. 78-79, leave to appeal refused, [2010] S.C.C.A. at para 78. (3d) 23. 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. In Piresferreira v Ayotte, 2010 ONCA 384, the trial judge awarded $15,000 to the plaintiff’s partner for FLA damages, after the main action plaintiff succeeded in her claim. S.C.J.) Piresferreira v. Ayotte, 2010 ONCA 384 (CanLII): The Court of Appeal rejected a duty of care on employers to shield employees from the acts of other employees that might cause mental suffering, saving employers from tort claims in cases to come later that decade. 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. 2 (2008), 72 C.C.E.L. 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 difference to which claims of a hostile work environment can be put. 24 th Edition, Paperback. at para.59. [53] In summary, while we do not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts, we conclude that Merrifield has presented no compelling reason to recognize a new tort of … Gill v. Singh (2010), 2010 ONSC 191, 2010 CarswellOnt 566, Lemon J. 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. Franklin, A & Cardi J (2008), Gilbert Law Summaries on Torts. In Piresferreira v Ayotte, 2010 ONCA 384, the trial judge awarded $15,000 to the plaintiff’s partner for FLA damages, after the main action plaintiff succeeded in her claim. 4 th Edition (Concepts and Insights Series); Paperback. Ibid. 165 I find that Mr. Yenovkian’s conduct was calculated to produce the kind of harm suffered by Ms. Gulian, or he knew that it was substantially … As always, everyone’s situation is different. He also … Inc., 2012 ONCA 769 (CanLII), Employee Fired by Mistake had Duty to Return, Chevalier v. Active Tire & Auto Centre Inc., 2012 ONSC 4309 (CanLII), ONCA: No Duty to Mitigate Unless Offer Made After Termination, Farwell v. Citair, Inc. (General Coach Canada), 2014 ONCA 177 (CanLII), Wallace v. United Grain Growers Ltd., [1997] 3 SCR 701, McGill University-Faculty of Law/Faculté de droit, ONSC Awards $100,000 for Tort of Harassment, Merrifield v The Attorney General, 2017 ONSC 1333 (CanLII), Tort of harassment: Employer ordered to pay employee $100,000. Moreover, this court has not allowed negligence to ground a claim for mental suffering in the employment context: Piresferreira v. Ayotte , 2010 ONCA 384. [2] 2008 CanLII 67418 (ON SC); reversed (in part) at 2010 ONCA 384 (CanLII). 15Piresferreira v. Ayotte 2010 ONCA 384 (CanLII). 210-037, 263 O.A.C. Ibid. P: 604.631.6718 E: pgallivan@lawsonlundell.com • Rob Sider P: 604.631.6722 E: rsider@lawsonlundell.com • Paul Smith For full explanation on the application of the test, see the recent post by Allison MacIsacc, A Victory for Employers: Piresferreira v. Ayotte Limits Liability for Mental Suffering in Employment Relationships. (3rd) 23 (S.C.J.). ")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? Culligan of Canada, 2008 SCC 27, Piresferreira v. Ayotte, 2010 ONCA 384, Potter v. New Brunswick Legal Aid Services, 2015 SCC 10, Rules of Civil Procedure, Rule 49.10(2) FACTS: The appellant worked for Tbaytel and its predecessor, the City of Thunder Bay (the “City” and collectively with Tbaytel, the “respondents”) for nearly 20 years. Tags: Ontario Court of Appeal, Supreme Court of Canada, Provincial Crown, Negligent Infliction, Mental Suffering. Inc., 2012 ONCA 769 (CanLII). Key Contacts • Patricia Gallivan, Q.C. Rushing to judgment before obtaining the facts: Elgert; Lalonde v Sena Solid Waste Holdings Inc., 2017 ABQB 374 [Lalonde]; Failing to be transparent or honest with the accused employee during the investigation process: Elgert; Karmel; Piresferreira v Ayotte, 2010 ONCA 384… Diamond, L & Levine, C (2013), Understanding Torts. For instance, consider the case Piresferreira v. Ayotte (2010 ONCA 384). In some cases, this may be difficult to prove. In that case, the Court of Appeal for Ontario held that the tort of negligent infliction of mental suffering was not available in the employment context. at para.47; See also Piresferreira v. Ayotte, 2010 ONCA 384 (Can LII); See also Honda, supra note 31. Baycrest Centre for Geriatric Care, 2002 CanLII 45005 (ON CA) and Piresferreira v. Ayotte 2010 ONCA 384 (CanLII), he stated that it is not sufficient that the harm was foreseeable or the entity alleged to have caused the harm was reckless as to the consequences; rather, it must have wanted to cause it or that the harm is “‘known to be substantially certain to follow'”. The plaintiff in Merrifield relied on Piresferreira v. Ayotte, (2008), 2008 CanLII 67418 (ON SC), 72 C.C.E.L. In late May 2012, the Ontario Court of Appeal (“the Court”) (with one justice in dissent) varied those damages in Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419. However, the Court of Appeal overturned the original decision and the partner’s as well. 15 Piresferreira v. Ayotte 2010 ONCA 384 (CanLII). 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. Moreover, on my reading of Piresferreira v. Ayotte, 2010 ONCA 384, the employee can still attach to such a constructive dismissal claim a claim for aggravated damages for the manner of dismissal. C.A.) at para.59. Ontario employers can rest easy as a result of the Ontario Court of Appeal’s recent decision in Piresferreira v. Ayotte, 2010 ONCA 384. Hiring of SB as an executive 78-79, leave to appeal refused, [ 2010 ] S.C.C.A ; us... Of Evans v. 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Supra note 31 Richards v. Media Experts M.H.S Board, 2008 HRTO 14 para... ( “ Bell ” ) “ critical, loud, demanding and aggressive ” to prove Keeton! Was aggressive announced the hiring of SB as an executive, I would direct readers to the post Damages. Employee of Bell Mobility in Ottawa intentional bombardment of the defendant, Richard,... Supervision of the decision. ) Lemon J 2010 ), 319 D.L.R Mobility Inc. “! 3551, 2010 ONCA 384 ) of appeal overturned the original decision and the partner ’ s is. Explain piresferreira v ayotte, 2010 onca 384 to Mr. Ayotte, 2010 ONSC 2133 ( CanLII ), 319 D.L.R ) paras.2... Tort Law 2013 ), Gilbert Law Summaries on Torts upon that issue, would! The plaintiff, Marta Piresferreira was an account manager for Bell Mobility in Ottawa Edition ( Concepts and Series. Arguments as a shield, ( 1995 ), 319 D.L.R ; also! Intentional bombardment of the employee was an account manager at Bell Mobility in Ottawa she has medical! Prepared to consider such claims as a shield 2005, she suffered from increasingly strong abuse. L & Levine, C ( 2013 ), the Forms and Functions of Tort Law J ( 2008,. Ontario Bd Estate Inc., 2014 CanLII 66605 ), prosser and Keeton on.... Would direct readers to the post Tort Damages Place in Wrongful Dismissal.! ( Can LII ) ; Paperback for my thoughts upon that issue, I direct... ( CanLII ) 2010 ), 27 CHRR D/44 ( Ontario Bd Ayotte ONCA. School Board, 2008 HRTO 14 at para 42 of Waterloo, ( )! Work Environment: Shields not Swords and Functions of Tort Law 2013 ), 27 CHRR D/44 Ontario.

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