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Wallace & Bad Faith & Moral & Mental Distress Damages

“'I’m Being Sued For What?!' Deconstructing the Different Damages in an Employee’s Statement of Claim"

Genny Na and Naomi E. Calla, lawyers at Borden Ladner Gervais in Toronto, have prepared a paper entitled,  “I’m Being Sued For What?!” Deconstructing the Different Damages in an Employee’s Statement of Claim".

The paper was written for the firm's 13th Annual Labour & Employment Group Symposium held on November 4, 2010.

The authors have attached to the paper an extremely useful, and comprehensive, chart that lists court decisions in Canada from 1984-2010 where "excess damages" (aggravated, bad faith, punitive, etc.) have been awarded.

Supervisor's defamatory appraisal of dismissed employee protected by qualified privilege

In Dawydiuk v. Insurance Corporation of British Columbia, 2010 BCCA 353, the BC Court of Appeal addressed whether the contents of an email written by a dismissed employee's supervisor were defamatory and , if so, whether they were  protected by the defence of qualified privilege.


Ms. Dawydiuk began her employment with the Insurance Corporation of British Columbia ("ICBC") in 1988 as a clerk. At the time of her dismissal in 2004, she was 38 years-old and in a managerial position.

Ms. Dawydiuk had been off work since June 2003, first on a sick leave and then on a maternity/parental leave.  She was scheduled to return to work on October 4, 2004.

On July 5, 2004, while still on leave, Ms.Dawydiuk was phoned by her supervisor and advised of a restructuring that had resulted in her position being eliminated. Her supervisor advised her of two other available managerial positions, however, and asked her to let him know which one she would like.  read more »

Failure to adequately follow-up after fire destroyed employee's home, attack on reputation, lead to $20,000 bad faith damages

Jurisdiction: - British Columbia
Sector: - Retail Trade

In Beggs v. Westport Foods Ltd., 2010 BCSC 833, the court awarded the plaintiff/former employee $20,000 in bad faith/unfair dealing damages because, among other factors:

  • the employer only tried to contact the employee twice after a fire destroyed her home before assuming she had quit; and
  • the employer's lawyer had attacked the plaintiff's reputation and had undertaken a generally aggressive tone in his correspondence with the plaintiff's lawyer.


The plaintiff had worked as a clerk in the employer's meat department for 9.5 years. She earned $13.10/hour.  She had a Grade 12 education, was 52 years old and had a "good record" at work.

Triggering Event

On February 18, 2009, the plaintiff's mobile home was destroyed by a fire. She phoned her supervisor the next day to advise that she would be coming into work as scheduled that day, and did not know when she would be returning to work.  read more »

Tort of negligent infliction of mental suffering not available in employment context, ONCA rules

In an important decision that came out on May 28, 2010 - Piresferreira v. Ayotte, 2010 ONCA 384 - the Ontario Court of Appeal ruled that employees cannot sue their employers for the tort of negligent infliction of mental suffering, at least in Ontario.


At the time of the incident that led to the termination of her employment with Bell Mobility, the plaintiff, Ms. Pieresferreira, was an Account Manager, had 10 years service, was 60 years olds, and had received mostly excellent performance reviews.

As set out by the Court of Appeal, her supervisor, Mr. Ayotte, was a "critical, demanding, loud and aggressive manager" who was known to "swear at employees, had a temper and would bang his fist on the table to make a point" (para. 5).  read more »

"Vorvis, Wallace and Keays - Is Wallace Dead?

Jurisdiction: - Ontario

Lawyers at Koskie Minsky LLP prepared a paper entitled "Vorvis, Wallace and Keays - Is Wallace Dead?" (April 29, 2010) for the Ontario Bar Association 9th Annual Employment Issues: Developments in Supreme Court Doctrine Conference.

Presentation: "The Law on Workplace Investigations: An Update on Key Developments"

I presented a paper on The Law on Workplace Investigations: An Update on Key
today at the BC "Employment Law Conference 2010" Continuing Legal Education (CLE). The paper can be found at the bottom of this post. The topics I covered were:

  1. Does an Employer Have a Common Law Duty to Provide the Employee with a Fair Hearing/Conduct an Investigation?
  2. What Exposure to Liability/Damages Does an Employer Face for Failing to Properly Conduct an Investigation?
  3. Conducting the Investigation
  4. The Use of Lawyers as Expert Witnesses on Workplace Investigations
  5. Recovery of Costs Associated With Investigating Criminal Wrongdoing
  6. What Duties do Employees Have in Relation to Workplace Investigations?
  7. Privilege Concerns and Workplace Investigations

The last time I presented at the Employment Law CLE - in 2006 - my topic was Reference Letters.

"Charge to the Jury" on awarding aggravated damages in Alberta wrongful dismissal case

Jurisdiction: - Alberta
Sector: - Retail Trade

In Elgert v. Home Hardware Stores Limited, 2010 ABQB 220 - this is further to my previous two posts - the judge also recited his Charge to the Jury on the issue of aggravated damages at para. 62:

On aggravated damages, the Charge to the Jury reflected an employer's obligation of good faith and fair dealing and the recognition that when an employment relationship ruptures, the employee is at his most vulnerable and in most need of protection. This was described in my Charge to the Jury at pages 19 - 20 which reads:-  read more »

Alberta jury awards almost $1 million in damages to employee dismissed for sexual harassment

The case of Elgert v. Home Hardware Stores Limited, 2010 ABQB 73 (CanLII), concerned a senior employee in a management position was dismissed for just cause based on alleged sexually harassment and insubordination. At the time, he had worked for Home Hardware for almost 17 years and was over the age of 50.

The alleged incidents occurred in late 2001/early2002 at the Home Hardware distribution centre in Wetaskiwin, an hour's drive from Edmonton.

The first complainant alleged that the Plaintiff, Mr. Elgert, pushed her into a dark storage room, pushed her up against a table, held her hands down and wiggled his body between her legs.

The second compliant alleged that a few months later while she was cleaning a first aid room in the warehouse, the Plaintiff entered the room, turned off the light and shut the door. He then bumped her backwards until she fell onto a cot. He laid on top of her, and lingered there.

One of the complainants was the daughter of the head of the distribution centre.  read more »

Employer to pay $20,000 in punitive damages for not fully investigating allegations before dismissing for just cause

The employer in Nishina v. Azuma Foods (Canada ) Co. Ltd., 2010 BCSC 502, was ordered to pay $20,000 in punitive damages for dismissing an employee for just cause without properly investigating the allegations of misconduct.  

The case is also of interest in that the court addressed:

  • the contractual force of workplace policy handbooks; and
  • the degree to which different cultural norms - in this case, the importance of an apology in Japanese culture - will impact on the just cause analysis.


The employer was a Japanese company with operations in California and BC. It produced Japanese ready-to-eat frozen food products.

The employee was a Japanese citizen.  At the time of her dismissal, she was 43 years old, had 6 years, four months service and was employed as a quality control associate. She earned approximately $52,000 per year.     read more »

Unionized employee awarded over $500,000 in total damages for bad faith dismissal

Jurisdiction: - Ontario
Sector: - Transportation

The Canadian labour and employment law community has taken notice of the decision in Greater Toronto Airports Authority and Public Service Alliance of Canada, Local 0004 (No. GV-008-04, O.B. Shime, QC, February 24, 2010), much the same way it did of:

In Greater Toronto, the arbitrator awarded a 47 year-old unionized employee over $500,000 in total damages because the employer had acted unreasonably and in bad faith in terminating her employment.  read more »