Mental Suffering in the Workplace

I have long advised clients that contracts of employment have essentially two speeds: on and off.

Our courts do not want to judicialize the workplace, and they are determined not to have their attention shifted away from circumstances of dismissal.

This is most apparent in  Piresferreira v. Ayotte. There, the Ontario Court of Appeal overturned a half million dollar damage award granted by a highly respected trial judge, Justice Catherine Aitken, for an employer’s alleged negligent infliction of mental suffering during the course of employment. The court held that the parties had a relationship of proximity and that the damages suffered were reasonably foreseeable. However, for policy reasons, the court would not impose a general duty on employers to “shield an employee during the entire course of his or her employment from acts in the workplace that might cause mental suffering.” The court held therefore that the tort of negligent infliction of mental suffering is not available in the employment context.

This leaves the possibility of intentional infliction of mental suffering, but the court narrowed the applicability of this intentional tort to the “sort of glaring and notorious false communication that has been the basis of the classic application of the tort,” referring to century-old cases where defendants falsely communicated to plaintiffs deliberate lies calculated specifically to cause distress.

Implicit in the court’s decision is that if your boss is making you crazy, you should talk to your lawyer about suing for constructive dismissal, as that is likely your only reasonable remedy.