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WRONGFUL DISMISSAL DAMAGES - Damages for mental distress - Aggravated damages

Thursday, November 22, 2018 @ 8:35 AM  


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Appeal by the defendant, Utopia Day Spas and Salons, from an aggravated damages award in favour of the plaintiff, Cottrill. In 2004, the defendant hired the plaintiff to work as a skincare therapist. In 2015, the defendant met with the plaintiff to discuss concerns regarding her job performance. The plaintiff was provided a letter outlining performance deficiencies and given three months to improve, failing which her employment would be terminated. Three months later, the plaintiff was terminated. At trial, the defendant alleged it had just cause for the dismissal. The trial judge concluded that the plaintiff was wrongfully dismissed on the basis that the defendant unreasonably sought to enforce a performance standard it had never previously required and failed to provide the plaintiff with a fair assessment of her performance. The plaintiff was awarded eight weeks' severance pay pursuant to the parties' employment agreement. The plaintiff was also awarded aggravated damages of $15,000 due to the emotional distress caused by the manner of dismissal. A claim for punitive damages was rejected. The defendant appealed the aggravated damages award.

HELD: Appeal allowed. The trial judge erred in awarding aggravated damages in the absence of any evidence that the plaintiff suffered any actual harm as a result of the manner of her dismissal. There was no evidence from the plaintiff or from family members, friends or third parties concerning the impact of the termination on the plaintiff and her mental state. The only evidence of mental distress was transient upset, falling well short of the legal standard requiring serious and prolonged disruption transcending ordinary emotional upset or distress. Given the lack of an evidentiary basis for the finding of mental distress caused by the manner of dismissal, it was an error in principle for the trial judge to make an award of aggravated damages. The award was set aside.

Cottrill v. Utopia Day Spas and Salons Ltd., [2018] B.C.J. No. 3405, British Columbia Court of Appeal, R. Goepel, J.E.D. Savage and B. Fisher JJ.A., October 17, 2018. Digest No. TLD-November192018007