Employer’s Limited Liability for Intentional Infliction of Mental Suffering

Written by on August 22, 2008 in Employment Law Blog

Amaral (Litigation guardian of) v. Canadian Musical Reproduction Rights Agency Ltd. – Ontario Superior Court of Justice – July 25, 2007

Though an employer may be held responsible for some distress suffered by an employee due to workplace issues, an employer will not be held liable for every such occurrence.

The July 25, 2007 Ontario Superior Court of Justice decision of Amaral (Litigation guardian of) v. Canadian Musical Reproduction Rights Agency Ltd. [2007] O.J. No. 4266 (“Amaral”), held that the employer was not liable for an employee’s mental breakdown due to employment related issues. Although it is possible for an employer to be found responsible for the tortous act of intentional infliction of mental suffering, resulting in an employer being liable for the employee’s distress, the facts in Amaral did not satisfy the onerous test, rendering the employer not liable for the employee’s mental breakdown.

In Amaral, the employee had taken over extra duties in addition to her original position without any promotion. When the employee asked for an official promotion to the position of Manager of Royalties in recognition of this additional work, the employer denied her request. Shortly thereafter, the employer requested the employee to draft a certain letter. The employee pointed out that this is a duty of the Manager of Royalties, and since she was not permitted to undertake that official title she refused to write the letter. A meeting was held in response to this situation, where the employee was informed by the President of the employer that she would never be promoted as long as he remained President.

One week later, the employee was diagnosed with agitated depression by her family doctor. Soon after this diagnosis, the employer had concerns about the employee’s performance at work and decided to split up the employee’s employment responsibilities. The employee felt that this change was a demotion and was very upset as the co-worker who now had some of her old responsibilities was an individual whom the employee had previously trained. Four months later, the employee received a poor performance review at work which warned that if the employee did not make certain changes in her conduct, such as arriving to work on time, then disciplinary actions “up to and including termination” would be taken.

Three days after receiving this performance review, the employee suffered from a serious mental breakdown in her doctor’s office. The employee filed a claim against her employer alleging that the employer had intentionally inflicted mental suffering on her and is therefore responsible for the damages as a result of her depression.

The Trial Judge stated that “The tort of intentional infliction of mental suffering is difficult to prove.  It has three constituent elements.  Each of them must be present, or the claim must fail.” The three points of the test are: 1. Flagrant and extreme conduct; 2. Plainly calculated to produce some effect of the kind produced; and 3. A visible and provable illness.

The Trial Judge decided that the employee’s claim must fail. In reaching this decision, the Trial Judge stated that the employee was not able to establish two of the three requirements necessary for succeeding in this tort. Though the employee had a visible and provable illness, the Trial Judge stated, “I do not find that any of the defendants’ conduct was –extreme, flagrant or outrageous’ in the sense contemplated by the case law.  That alone would suffice to dismiss the claim.” Furthermore, the Trial Judge found that there was “no evidence whatsoever that the [employer]…either wanted [the employee] to fall ill, or that it was obvious that her mental breakdown was –substantially certain’ to follow the [employer’s] actions.” The Trial Judge continued, “I cannot conclude that the [employer] did, or should have known about [the employee’s] fragile emotional state, or that she was suffering from depression…If the employer does not know of the employee’s condition, or fragile mental state, I cannot see how their actions could be –plainly calculated to cause’ her depression, subsequent breakdown and its sequelae.”

The decision in Amaral not only demonstrates the difficulty in proving the tort of intentional infliction of mental suffering, but it also establishes that an employer will not be held liable for every employment issue which inflicts distress upon one of their employees. Employers are not held to an onerous level of perfection when it comes to how an employee will react to every aspect of employment. However, this limit on the employer’s liability does not permit employers to treat their employees in a harsh or improper way. Different facts will surround every situation and some may result in an employer being liable for such claims as intentionally inflicting mental distress.

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