Sick notes, spying, and a toilet seat prank: Did these things comprise a successful basis for moral damages?

On January 7, 2015 the Ontario Superior Court of Justice issued a decision in Ciszkowski v. Canac Kitchens, 2015 ONSC 73 (CanLII). This case concerns the acrimonious termination of an 18-year employment relationship between the plaintiff and his employer. The plaintiff sought damages in lieu of reasonable notice of termination; damages for the tort of intentional infliction of mental suffering; bad-faith damages; and an award of punitive damages.

While the plaintiff was successful in his constructive dismissal claim against the employer, he was not successful on other fronts. What I find of particular interest in this case is the Court’s findings in relation to the claim for compensatory moral damages for the bad-faith manner of his dismissal. The plaintiff sought moral damages in the range of $75,000 – $100,000. The plaintiff’s counsel took the position that the employer had an agenda to force the plaintiff from his position without providing a package.

The Court denied the moral damages and stated that it did not find that Canac or any of its employees engaged in a protracted campaign of harassment against the plaintiff that was aimed at forcing him to quit. In coming to that conclusion it focused on 3 areas that the Plaintiff referenced as the basis for his claim:

1. The employer’s repeated requests for adequate notice and proof of attendance at doctor’s appointments. The Court found that this did not amount to harassing behaviour. The Court found that this was standard company policy and that other employees were asked for notes when their absences were more frequent than once per month. The Court stated that the plaintiff would often present the employer with little notice of his impending doctor’s appointments, and in those circumstances, the employer’s reaction to that lack of notice was not unreasonable.

2. The employer allegedly asked other employees to keep an eye on the plaintiff (i.e. spy on him). In its factual findings, the Court found that everyone was expected to report on everyone else. The Court found that there was a culture, instilled or encouraged, of employees being asked to report on the workplace activities of their colleagues. The Court commented that this is certainly not healthy or normal for any functioning workplace, and this behaviour should be wholeheartedly denounced by all employers. However the Court concluded that it did not constitute a campaign of surveillance targeting the plaintiff. Rather it was a campaign targeting all employees.

3. The incident whereby Herman Vijayakumar was handed a toilet seat as a joke Canac Spirit award. The plaintiff contended that he was the subject of false and trumped up accusations. He denied that it was he who handed out the toilet seat and testified that he was at a loss as to explain why Mr. Vijayakumar would send him an email accusing him of playing a practical joke. The Court found that based on the evidence presented, the plaintiff had in fact been the one to hand over the toilet seat as a joke. The Court further found that the plaintiff was not singled out or selectively disciplined for his role in this incident. Other employees were disciplined for taking part in the joke. The employer viewed this incident as yet another example of employees wasting time and imparted discipline accordingly.

The facts above tell us that employers are within their rights to appropriately manage their employees in the workplace, and in doing so, will not be exposed to bad faith damages. However, while in this instance no damages were awarded in relation to the culture which was encouraged, employers should take note that the culture came under heavy criticism. This should not dissuade employers from creating policies and a work environment which encourages employees to come forward and report illegal behaviour (such as harassment) in the workplace.

Patrizia Piccolo

About the Author: Toronto Employment Lawyer Patrizia Piccolo is a trusted advisor to senior executives in transition; provides strategic advice and training to both large and small employers and their human resources and management teams; and is entrusted by employers and their counsel to conduct investigations into harassment and other problematic workplace behaviour. She also advises employers on employment related regulatory issues including, Employment Standards Act, Human Rights Act, Labour Relations Act and Workplace Safety and Insurance Act compliance.