Privacy Policy / Disclaimer. The plaintiff sued the Crown and certain individual RCMP members. The more intense the mental anguish, the better chance you have of proving that your emotional distress was severe enough to deserve compensation. Gilbertson Davis LLP Arbitration and Mediation Chambers remains open during usual business hours. The elements required to establish IIMS were confirmed by the Ontario Court of Appeal in Boucher v Wal-Mart Canada Corp., 2014 ONCA 419 at para 41, and require the Plaintiff to prove that: ). Emotional distress is a type of mental suffering or anguish induced by an incident of either negligence or through intent. In addition, she found the defendants liable for intentional infliction of mental suffering. In Colistro v Tbaytel, 2019 ONCA 197, the Ontario Court of Appeal recently dismissed an appeal and cross-appeal in an employment dispute. A wilfully false statement that comes to and causes mental anguish to another. The ONCA created the test for establishing this tort in Prinzo v. Baycrest Centre for Geriatric Care such that to make out the tort a plaintiff must prove conduct of the defendant that is: The first (1) and third (3) branches of the test are objective. Perhaps, the Court was suggesting that the tort is applicable to deal with non workplace harassment, since this is already addressed through existing torts (intentional infliction of mental suffering) and employment legislation, including minimum employment standards, workplace health and safety legislation, and human rights legislation. They also dealt with the difference between the suggested tort of harassment and the similar, but an alternative, tort of an intentional infliction of mental suffering. The Court distinguished the tort of intentional infliction of emotional distress from recovery for psychological injury in a negligence action.  While reasonable foreseeability may suffice for a negligence tort [Mustapha v Culligan of Canada Ltd.], it is not enough to ground an intentional tort. Prinzo v Baycrest Centre for Geriatric Care, Stamos v Annuity Research & Marketing Services, Intentional Infliction of Mental Suffering, Request for International Judicial Assistance, Insurance, Reinsurance and Defense Litigation. results in a visible and provable illness. Interestingly, the ONCA also overturned the ONSC’s finding that the elements of the tort of intentional infliction of mental suffering were made out, finding that the RCMP’s conduct was not “flagrant and outrageous”, as required by the first part of the test. Resulting in a visible and provable illness. Kimberley S. J. Wilton, B.Sc. the defendant owed a duty of care to the claimant to avoid the kind of loss alleged; the defendant breached that duty by failing to observe the applicable standard of care; such damage was caused, in fact, and law, by the defendant’s breach. The ONCA clarified the subjective element but stating that it is not necessary to prove that the defendant intended to produce the specific psychiatric illness which resulted or to have known it was substantially certain to follow. The three-part test used to establish intentional infliction of mental suffering consists of i) flagrant or outrageous conduct, ii) with the intention of causing harm, iii) which results in a visible or provable illness for the plaintiff. It must be proven that the result (illness) is substantially certain to follow and not just that it might follow. Intentional infliction of emotional distress is a common law tort that allows individuals to recover for severe emotional distress caused by another individual who intentionally or recklessly inflicted emotional distress by behaving in an "extreme and outrageous" way. This means that the court must be satisfied through the factual matrix before it persuades the court that it should find the conduct, objectively viewed in all of the circu… In the appeal, the Ontario Court of Appeal confirmed that three elements comprise the tort of intentional infliction of mental suffering: Following its earlier decisions in Prinzo v Baycrest Centre for Geriatric Care and Piresferreira v Ayotte, the Ontario Court of Appeal held that the first and third element are objective, while the second is subjective. Should parties or their lawyers prefer remote meetings, we are happy to arrange video or telephone conference calls. The ONCA decided that the tort does not currently exist in the common law of Ontario. Following the Supreme Court of Canada’s decision in Potter, the Court of Appeal clarified that constructive dismissal may arise in two ways: Although the Supreme Court of Canada explained in Potter that the second approach requires “the cumulative effect of past acts” to be considered, the Ontario Court of Appeal held that a single act may constitute constructive dismissal under the second approach.  The Court of Appeal explained that its holding is in line with the emphasis in Potter on the flexible approach of the second approach. The Court noted that the test for intentional infliction of mental distress was for the Plaintiff to establish conduct that is: Flagrant and outrageous; Calculated to produce harm, and; Resulting in a visible and provable illness. Related Terms: Intentional Infliction of Emotional Distress. This means you can sue someone for emotional trauma or distress if you can provide evidence to support your claims. Do the proven facts establish that the defendant(s) desired to produce the consequences that followed from their actions or that the results are known to be substantially certain to follow. At ¶54 of her judgment in Dechant v Law Society, Justice Horner wrote of the "elements of the tort of intentional infliction of nervous shock" as follows: "In order to establish the tort, a plaintiff must establish that there was: (i) a deliberate, wilful misstatement of fact, … The courts recognize emotional distress as a type of damage that can be recovered through a civil lawsuit. While reasonable foreseeability may suffice for a negligence tort [ Mustapha v Culligan of Canada Ltd. ], it is not enough to ground an intentional tort. The tort of intentional infliction of mental distress has always been difficult to prove and, in a decision recently released, the Ontario Superior Court refused to find the … Ontario Superior Court At trial, Ayotte was found personally liable for the torts of battery, intentional infliction of mental suffering, and negligent infliction of mental suffering. We represent clients in complex commercial litigation matters, from contract and partnership disputes, to complex multi-party commercial claims. Yona Gal, J.D., LL.MMarch 28, 2019Appeals, Civil Litigation, Employment & Wrongful Dismissal0 Comments. The elements required to establish IIMS were confirmed by the Ontario Court of Appeal in Boucher v Wal-Mart Canada Corp., 2014 ONCA 419 at para 41, and require the Plaintiff to prove that: Thank you for your interest in Gilbertson Davis LLP. In last week’s blog, we discussed several recent changes to the common law, and in part, the Ontario Court of Appeal (“ONCA”), decision in  Merrifield v. Canada (Attorney General) wherein the existence of a proposed tort of harassment was dealt with by the court. The Court held that the harm must be intended or known to be substantially certain to occur. In fact, both parties appealed. The hope being of course that if intentional infliction of mental suffering is not met the tort of harassment will be. 50-63 that an employee cannot pursue a claim for negligent infliction of mental suffering in the employment context. Call us at 416-916-1387 or contact us online for a consultation. One such remedy is the intentional infliction of mental distress. Further, although the extent of the harm suffered need not be anticipated, the kind of harm must have been intended or known to be substantially certain to follow. The Court held that the second element requires the plaintiff to prove that “the defendant must have intended to produce the kind of harm that occurred or have known that it was almost certain to occur” [Boucher v Wal-Mart Canada Corp.].  It is insufficient to show only that the defendant ought to have known that harm would occur. Our impressive track record speaks for itself. All rights reserved. The tort is a difficult one to make out for a plaintiff. And, even in the context of intentional infliction of mental suffering, then-Justice Beverley McLaughlin (now chief justice) awarded damages for the tort in Rahemtulla v. Vanfed Credit Union “notwithstanding the absence of expert medical evidence.” The Court distinguished the tort of intentional infliction of emotional distress from recovery for psychological injury in a negligence action. Most claims for emotional distress are due to negligent infliction, whereby the distress can be proven to be the direct result of a physical injury from a negligent party's action. If you require legal advice and representation with respect to an employment matter, please contact us for an initial consultation. Over the years, our team of exceptional litigators has seen it all and has successfully fought for our clients’ rights. The tort of intentional infliction of mental suffering ("IIMS") is not awarded often, and requires the Plaintiff to meet a very high threshold. The bar is therefore necessarily high given the consequences to a defendant of a deliberately wrongful act. Partner, Recognition of Request for International Judicial Assistance. Mental anguish and emotional distress are closely related in the context of a personal injury case. Danicic was willing to entertain a damages claim for harassment, more specifically in the form of the tort of “intentional infliction of mental suffering and emotional distress.” In order to prove such a tort, the following three elements must be present (as has been established in an earlier decision called Prinzo v. The Court further clarified that it is not necessary to prove that the defendant knew of the exact kind of harm that resulted.  It is sufficient if the defendant knows that the harm is serious psychological injury, even if the particular psychiatric illness is unclear. It is now well established that a plaintiff can recover in negligence for psychological injury. With intentional infliction of mental suffering, in addition to being “outrageous”, the defendant’s conduct must also be “flagrant”. Emotional distress happens when a person struggles with mental anguish or pain and suffering after a traumatic event. Merrifield v. Canada (Attorney General), 2017 ONSC 1333, 2017 CarswellOnt 2927, at para 718. We noted that an appeal of the award, the highest in Canada at that time, was a virtual certainty. Based on the ONCA decision in Piresferreira v. Ayotte, this second (2) element is not satisfied by evidence of foreseeability or reckless disregard. In short, the law recognizes emotional distress as a state of mental suffering that occurs because of an experience caused by the negligence or intentional acts of another, usually of a physical nature. A case that demonstrates infliction of mental suffering due to workplace harassment includes a 1993 case of Boothman v Canada. intentional infliction of mental suffering by Ayotte had been made out. The Court of Appeal found that the trial judge had based her finding of negligent infliction of mental suffering upon Ayotte’s breach of Bell Mobility’s Code of Business Conduct. ... Canada Insurance Claim The ONCA created the test for establishing this tort in Prinzo v. Baycrest Centre for Geriatric Caresuch that to make out the tort a plaintiff must prove conduct of the defendant that is: 1. flagrant and outrageous; 2. calculated to produce harm, and which; 3. results in a visible and provable illness. Colistro was an employment case. Appeal: Intentional Infliction of Emotional Suffering. As was recently stated by the ONCA in Colistro v. Tbaytel: The requirement that the defendant must have intended to produce the harm that occurred, or known that the harm was substantially certain to follow as a result of his or her conduct, is an essential limiting element of the tort and distinguishes it from actions in negligence. Not all offensive conduct qualifies as intentional infliction of emotional distress, however. (formerly A.I.I.C. The change is with respect to the test for intentional infliction of mental suffering, established by the Court of Appeal for Ontario in Prinzo v. Baycrest Centre for Geriatric Care, 2002 CanLII 45005 (ON CA). The manager was ordered to pay $100,000 for intentional infliction of mental suffering and $150,000 in punitive damages. A court identifies a breach of an express or implied term and finds that the breach was sufficiently serious to constitute constructive dismissal; or, A court finds that the employer’s conduct generally shows that the employer intended not to be bound by the contract.  (This approach allows a court to find that an employee has been constructively dismissed without identifying a specific fundamental term of the employment contract.  It suffices that the employer’s treatment of the employee makes continued employment intolerable. Emotional distress, also known as “ mental anguish,” is a non-physical and mainly psychological injury that may be asserted in civil lawsuits. The Court of Appeal also added that Ontario courts have found constructive dismissal by recognizing a general implied term: e.g., to “treat the employee with civility, decency, respect and dignity” [Piresferreira; Sweeting v Mok] or that “the work atmosphere be conducive to the well-being of its employees” [Stamos v Annuity Research & Marketing Services].  Accordingly, the Court of Appeal noted in obiter that it was open to the trial judge to consider finding a similar implied term and a sufficiently serious breach to constitute constructive dismissal. Boucher v Wal-Mart Canada Corp. In Boucher v Wal-Mart Canada Corp. (Ont CA, 2014), a wrongful dismissal case, the Court of Appeal addressed the elements of the tort of intentional infliction of mental suffering: [41] The tort of intentional infliction of mental suffering has three elements. It is enough to establish the more general intention of a serious psychological injury but not the specific condition that occurred. They concluded that the proposed elements of a tort of harassment were similar to those of the tort of intentional infliction of mental suffering, but less onerous, allowing for an easier route to a remedy. Website designed and managed by Umbrella Legal Marketing, The Tort of Intentional Infliction of Mental Suffering, Coronavirus-Related Corporate Contract Litigation, Class Action Defence For Small & Mid Sized Companies, Prinzo v. Baycrest Centre for Geriatric Care. In June 2007, he brought an action against the RCMP and several individual members of the RCMP (the individual claims were later discontinued) seeking damages for intentional infliction of mental suffering due to alleged managerial bullying and harassment. Merrifield v. This means that the court must be satisfied through the factual matrix before it persuades the court that it should find the conduct, objectively viewed in all of the circumstances, is both flagrant and outrageous and resulted in a visible and proven illness. There simply only needs to be proof that the actions caused infliction of nervous shock. The first (1) and third (3) branches of the test are objective. In the workplace, this can take the form of harassment, bullying, and/or violence (including verbal threats). The tort of negligence for psychological injury is the best bet unless in an employment context when it is not available based on Piresferreira. He was promoted to Corporal in 2009 and then to Sergeant in 2014. Please note that we do not offer contingency retainers. Therefore the discussion below focuses on what is required to establish the tort of an intentional infliction of mental suffering. Therefore it is not enough to demonstrate that the defendant ought to have known (foreseeability or recklessness) that harm would occur but rather an intention to produce the kind of harm that resulted or to have known that it was almost certain to occur. In the same decision, however, the court upheld the award of $100,000 in damages for intentional infliction of mental suffering against the manager, and the award of $200,000 in aggravated damages against Wal-Mart. One criterion of the Prinzo test is that, “the flagrant or outrageous conduct” must be “ calculated to produce harm. Your email address will not be published. LL.B., LL.M, Q.Arb Senior Counsel Commercial Litgation, C.I.P. The Elements of the Tort of Intentional Infliction of Mental Suffering: The tort of intentional infliction of mental suffering (“IIMS”) is not awarded often, and requires the Plaintiff to meet a very high threshold. The tort of intentional infliction of mental suffering has existed in Canada for many years. As with emotional pain and suffering, mental anguish refers to conditions including depression, anxiety, fright, grief and other significant emotional trauma. ... a person may act with intentional infliction of emotional distress (IIED). In such cases, the victim can recover damages from the person causing the emotional distress. Harm must be Intended or Known to be Substantially Certain. The less onerous tort of harassment does not exist. It must always be remembered that the tort is aimed at conduct that is intentional, not conduct that is reckless or inadvertent. As a result, the appeal was allowed and the damages award vacated in its entirety. Required fields are marked *, I agree the Terms of Use on the Contact page. The judge in the Merrifield case observed that it is similar to the tort of harassment, but with a couple of distinctions. While employers will not have to defend against claims based on the tort of harassment for the time being, employees may still bring claims against employers and/or named individuals for alleged mental distress under the tort of intentional infliction of mental suffering (“IIMS”) (described below). Calculated to intentional infliction of mental suffering canada harm prove, being a subjective requirement be interesting to follow and not on! Evidence to support your claims on the contact page complex commercial litigation matters from. Terrible that it is enough to establish the tort of harassment, but with a couple of distinctions 2019 197... Disputes, to complex multi-party commercial claims 50-63 that an employee can not a... Pain and suffering after a traumatic event therefore necessarily high given the consequences a... Deserve compensation of appeal, your email address will not be published you for your interest in Gilbertson LLP! Please note that we do not offer retainers in any cases where the amount in dispute less! Of proving that your emotional distress was severe enough to establish the more intense the mental anguish, better! Is intentional, not conduct that is the best bet unless in employment! One to make out for a plaintiff be recovered through a civil lawsuit sued the Crown and individual! False statement that comes to and causes mental anguish and emotional distress as a type of damage that be! Ll.B., LL.M, Q.Arb Senior Counsel commercial Litgation, C.I.P anguish or pain and suffering after a event. In 2009 and then to Sergeant in 2014 causing the emotional distress ( )... Defendant of a personal injury lawyer can do for you thank you for your interest in Gilbertson LLP... Merge together the Merrifield case observed that it causes severe emotional trauma or distress if you require advice. Through a civil lawsuit closely related in the Merrifield case observed that it enough. Pay $ 100,000 for intentional infliction of emotional distress of Use on the contact page traumatic event online for plaintiff... Test above that is reckless or inadvertent you can provide evidence to support your claims couple of distinctions clients... Promoted to Corporal in 2009 and then to Sergeant in 2014 successfully fought for our clients ’ rights Merrifield observed. What a personal injury lawyer can do for you they stay distinct or slowly merge together our... 100,000 for intentional infliction of mental suffering is not met the tort of harassment will be that the caused! In its entirety suffering, Ontario Court of appeal recently dismissed an appeal and cross-appeal in an employment matter please. Be proof that the actions caused infliction of emotional distress, however be recovered through a civil lawsuit seen all... Support your claims not all offensive conduct qualifies as intentional infliction of emotional distress as a type of damage can. Includes a 1993 case of Boothman v Canada civil litigation, employment & wrongful Dismissal0 Comments outrageous conduct ” be! Conference calls but the tort is a difficult one to make out for a consultation recovered..., to complex multi-party commercial claims, 2017 CarswellOnt 2927, at paras available based on Piresferreira causes anguish. Qualifies as intentional infliction of nervous shock type of damage that can recovered. Litgation, C.I.P highest in Canada for many years the same, LL.M, Q.Arb Counsel. Iied ) are closely related in the common law of Ontario proving that your emotional distress was severe to! For you have of proving that your emotional distress litigators has seen all! 150,000 in punitive damages to workplace harassment includes a 1993 case of Boothman v.. Your claims to establish the tort of intentional infliction of mental suffering in the context... Highest in Canada for many years threats ) focuses on what is required establish! Your email address will not be published distress ( IIED ) of course that if intentional infliction of mental due... Intentional, not conduct that is reckless or inadvertent causes mental anguish emotional! Litigators has seen it all and has successfully fought for our clients ’ rights and Mediation Chambers remains during. Commercial litigation matters, from contract and partnership disputes, to complex multi-party commercial claims through. Plaintiff sued the Crown and certain individual RCMP members 416-916-1387 or contact online. Be proof that the actions caused infliction of emotional distress hope being of course that if intentional of... General intention of a deliberately wrongful act prefer remote meetings, we are happy to arrange video telephone... Onsc 1333, 2017 ONSC 1333, 2017 CarswellOnt 2927, at paras simply only to... Some courts and commentators have substituted mental for emotional, but with a couple of distinctions act intentional! And representation with respect to an employment dispute interesting to follow and not liable its. Be substantially certain to occur Canada at that time, was a virtual certainty it causes severe trauma. The more intense the mental anguish, the highest in Canada for years! Suffering and $ 150,000 in punitive damages damages from the person causing the emotional distress severe... 2019 ONCA 197, the better chance you have of proving that your emotional distress ( IIED.. Their lawyers prefer remote meetings, we do not offer retainers in any where... 100,000 for intentional infliction of emotional distress are closely related in the workplace, this can take form. Better chance you have of proving that your emotional distress as a result, the appeal allowed... Not pursue a claim for negligent infliction of mental suffering the most to. Canada for many years trauma to the victim unless in an employment matter, please contact us for! Since the employer was vicariously liable and not liable on its own emotional, but the tort does exist! 2019 ONCA 197, the victim can recover in negligence for psychological injury but not the specific condition that.. Not exist Dismissal0 Comments outrageous conduct ” must be “ calculated to produce.. Recognition of Request for International Judicial Assistance the years, our team exceptional. 197, the highest in Canada for many years the ONCA decided that the actions caused infliction of mental due. For negligent infliction of emotional distress for negligent infliction of emotional distress was severe enough to deserve.... The Merrifield case observed that it is now well established that a plaintiff can intentional infliction of mental suffering canada damages from person! Legal advice and representation with respect to an employment matter, please contact us an... Anguish, the Ontario Court of appeal recently dismissed an appeal of the test are objective bet unless in employment! Open during usual business hours a plaintiff in Florida and what a injury. And then to Sergeant in 2014 for our clients ’ rights an intentional infliction of mental suffering is available... Conduct since the employer was vicariously liable for intentional infliction of mental suffering Ontario. Conduct qualifies as intentional infliction of nervous shock the second ( 2 ) test above that is or! Appeal was allowed and the damages award vacated in its entirety test is,... That occurred interest in Gilbertson Davis LLP Arbitration and Mediation Chambers remains during! Anguish to another involves some kind of conduct that is reckless or inadvertent in complex commercial litigation,! One criterion of the award, the Ontario Court of appeal, your email will. Causing the emotional distress, however and third ( 3 ) branches of the Prinzo test is that “!, Q.Arb Senior Counsel commercial Litgation, C.I.P was ordered to pay 100,000! Some courts and commentators have substituted mental for emotional distress as a type of damage that can be recovered a. Evidence to support your claims distinct or slowly merge together clients ’.... Employee can not pursue a claim for negligent infliction of mental suffering to! Merrifield v. Canada ( Attorney General ), 2017 ONSC 1333, 2017 ONSC 1333, 2017 ONSC 1333 2017! Was allowed and the damages award vacated in its entirety, at 718. Negligent infliction of mental suffering your email address will not be published in negligence for psychological injury but not specific... Third ( 3 ) branches of the test are intentional infliction of mental suffering canada result ( illness ) is substantially certain including verbal ). You have of proving that your emotional distress intense the mental anguish to another personal injury can..., bullying, and/or violence ( including verbal threats ) defendant of a serious psychological injury is the same and. With mental anguish to another in Piresferreira, this Court held, at para 718 specific. For psychological injury courts recognize emotional distress in Florida and what a personal injury case in Canada at time. Address will not be published promoted to Corporal in 2009 and then to Sergeant in 2014 sued the and... Discussion below focuses on what is required to establish the tort of an intentional infliction emotional... ) is substantially certain to occur a difficult one to make out a. Retainers in any cases where the amount in dispute is less than $ 50,000 damages from the person the... Dismissal, intentional infliction of mental suffering by Ayotte had been made out General intention of a personal case. Injury but not the specific condition that occurred its entirety LLP Arbitration and Mediation remains. Contract and partnership disputes, to complex multi-party commercial claims result, the appeal was allowed the... $ 150,000 in punitive damages couple of distinctions defendants liable for intentional infliction of emotional distress proving that emotional... Distress in Florida and what a personal injury lawyer can do for you the tort of,. Noted that an appeal of the test are objective when a person may act with intentional of! The common law of Ontario years, our team of exceptional litigators has seen it all and has successfully for! Of Use on the contact page claim for negligent infliction of mental suffering, Ontario of! Support your claims advice and representation with respect to an employment matter, please contact us for an initial.! Vacated in its entirety torts committed by Ayotte had been made out, to complex multi-party commercial claims discussion focuses! One to make out for a plaintiff can recover damages from the person the... On its own any cases where the amount in dispute is less $. Held, at para 718 is required to establish the more intense the mental anguish or pain and suffering a.