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WRONGFUL DISMISSAL DAMAGES - Occupation - Executive and management - Damages for mental distress - Wallace damages

Wednesday, March 15, 2017 @ 9:01 AM  

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Appeal by the defendant, Zochem, from a damages award in favour of the plaintiff, Doyle. The plaintiff worked for the defendant for nine years, most recently as supervisor of a zinc oxide production plant and health and safety coordinator. The plaintiff had 20 years' experience supervising employees. She was the only woman who worked at the plant. Her job required cooperation with Rogers, the plant maintenance manager, an employee the defendant regarded as irreplaceable. Rogers sexually harassed the plaintiff. He commented favourably on her breasts, made constant references to sexual activity, and continually objectified her. Rogers became aware of the plaintiff's forthcoming termination and demeaned her during a production meeting after she raised legitimate safety concerns. Unaware of her forthcoming termination, the plaintiff complained of the sexual harassment. The defendant conducted a cursory investigation without input from the plaintiff. The plaintiff was terminated without cause. She was 44 years of age at the time of her termination and 48 years of age at the time of trial. The plaintiff described the physical and psychological impact of the dismissal. The trial judge determined the plaintiff was terminated due to her gender and her sexual harassment complaint. The plaintiff was awarded ten months' pay in lieu of notice, $25,000 for sexual harassment under the Human Rights Code, plus $60,000 in moral damages for the defendant's breach of its implied contractual obligation of good faith in the manner of dismissal. The defendant appealed the moral damages award.

HELD: Appeal dismissed. Although the trial judge considered factors that were both relevant and irrelevant to an award of moral damages, the award was nonetheless justified. The plaintiff was assured her job was not in jeopardy after the termination decision had already been made. The defendant's response to the plaintiff's sexual harassment complaint was insensitive to the point of cruelty. The plaintiff's termination was cold and brusque. The trial judge did not err in regarding the sexual harassment investigation and post-termination denial of short-term disability benefits as related to the manner of termination and proper considerations respecting moral damages. The consideration of irrelevant business factors did not diminish the basis for the award. The award of moral damages did not constitute double recovery in the context of the Human Rights Code award for sexual harassment, as the awards vindicated different legal interests. Human Rights Code damages were remedial rather than punitive, whereas moral damages addressed unfair or bad faith conduct that caused mental distress. Although there was an overlap of conduct underlying the awards, it was not identical. There was no basis for reduction in the moral damages award. The appeal was dismissed with the plaintiff awarded costs of $40,000 on a substantial indemnity scale, recognizing pursuit of the appeal was a continuation of oppressive conduct by the defendant toward the plaintiff.

Doyle v. Zochem Inc., [2017] O.J. No. 748, Ontario Court of Appeal, K.M. Weiler, S.E. Pepall and G.T. Trotter JJ.A., February 15, 2017. Digest No. 3642-008