Rare will be a termination of employment which does not cause an employee to suffer emotionally and psychologically from the loss of work and associated loss of income, the loss of self-esteem and the disruptions to one’s life which result. The question considered here, is under what, if any circumstances can an employee sue for damages which result from the loss of employment.
“Aggravated” damages are awarded to compensate for aggravated injury. They are meant to take into account intangible injuries and are awarded in addition to damages that are otherwise available for wrongful dismissal. As one Court has observed:
“The aim of aggravated damages is to ‘soothe a plaintiff whose feelings have been wounded by the quality of a defendant’s misbehaviour’. They are a “balm for mental distress’ which is brought about by the wrongful ‘character of the defendant’s wrongdoing’. There must be evidence of damage of this type to the plaintiff.”
The leading case on aggravated damages in the employment context is Vorvis v. Insurance Corp. of B.C. In Vorvis, the plaintiff had returned to school to study law, after a successful career as a sales manager. Upon graduation, he went to work for the defendant and over the course of seven years, received a promotion and several merit pay increases.
Difficulties arose for the plaintiff upon the defendant’s decision to hire a new general counsel who became the plaintiff’s immediate supervisor. The mandate of the general counsel was to improve the productivity of the corporation’s legal department. The general counsel became increasingly dissatisfied with the pace of the plaintiff’s work, and instituted weekly productivity meetings to review the plaintiff’s performance. The trial judge noted that these meetings became “an inquisition” and “as the pressure increased the plaintiff became tense, agitated and distressed, finally requiring medical attention and a tranquilizer.”
A little more than year after the general counsel’s hire, the plaintiff was terminated simply because, according to trial judge, the plaintiff no longer fit into counsel’s plans for the legal department.
The plaintiff brought suit seeking damages for wrongful dismissal and damages for mental distress arising from his termination of employment. The courts at all levels concluded that the mental distress experienced by the plaintiff as a result of his termination, did not give rise to aggravated damages in addition to the damages he sought for wrongful dismissal.
The Supreme Court of Canada noted that where a claim is based upon breach of an employment contract, damages are limited to the financial loss suffered by the innocent party and cannot include damages for injured feelings. In the employment context, such financial damages would result from the employer’s failure to provide reasonable notice.
To found a claim for aggravated damages where an employee has been terminated, there must be evidence of a wrong committed by the employer separate and apart from its failure to provide appropriate notice. According to Vorvis, in the absence of such an “actionable wrong”, the employer’s conduct, even though offensive and hurtful to the plaintiff, would not give rise to aggravated damages.
When have the Courts awarded damages for mental distress in the context of a termination of employment? What will the Plaintiff need to show in order to establish an independent actionable wrong? These questions will be the subject of further articles touching on the issue of mental distress.
This article is provided for information purposes only and does not constitute legal advice. Any individual questions or legal issues should be discussed with independent counsel.