Canada: Mitigating Risks in the Face of Mental Distress Claims in Colistro v Tbaytel

In Colistro v Tbaytel, 2019 ONCA 197, the Ontario Court of Appeal considered an appeal in a claim for constructive dismissal and intentional infliction of mental distress. The plaintiff, Ms. Colistro (the “Plaintiff”), was a long-term employee of Tbaytel, a municipal services board which operates under the City of Thunder Bay (the “Employer”).

The Trial Decision

In the trial decision, the judge accepted that Ms. Colistro was sexually harassed by Mr. Benoit in 1995. Mr. Benoit was her immediate supervisor at that time. Mr. Benoit was terminated on a without cause basis and then rehired ten years later. Following the rehiring, the Plaintiff went on disability leave and was eventually diagnosed with post-traumatic stress disorder.

The Plaintiff then made a claim for constructive dismissal, bad faith damages, and intentional infliction of mental distress against the Employer. To sustain a finding of intentional infliction of mental distress, the Plaintiff was required to prove:

• (i) the conduct of the defendant was flagrant and outrageous;
• (ii) calculated to produce harm;
• (iii) which resulted in a visible and provable illness

The element “calculated to produce harm” has been defined as subjective knowledge that the kind of harm was substantially certain to result from the conduct. The trial judge dismissed the Plaintiff’s claim for intentional infliction of mental distress.

The Appeal Decision

The Plaintiff appealed the findings on intentional infliction of mental distress and sought leave to appeal the trial judge’s costs order. The Court of Appeal dismissed the appeal. This appeal decision suggests that attempting to accommodate an employee can mitigate against the risk of a finding of intentional infliction of mental distress at trial.

The Employer in this case sought to accommodate the employee by offering her an equivalent position in an adjacent building away from Mr. Benoit. The accommodation offer helped establish that the Employer lacked subjective knowledge that serious psychological injury was substantially certain to follow. The Court specifically found that the employer was open to accommodating the Plaintiff for the purpose of “avoiding the imposition of mental suffering on her”. While the accommodation offer was not acceptable to the Plaintiff, the Court noted that it may have been acceptable to others in a similar position. This evidence did not support the inference that the Employer subjectively knew that the serious psychological injury which ensued was substantially certain to occur.