Law Times

Law Times • November 15, 2010 An online resource 1.800.263.3269 Focus On LABOUR & EMPLOYMENT LAW Employers warned about liability for mental health Further legal developments expected as lawyer seeks appeal of Piresferreira BY ROBERT TODD Law Times M ost employers have learned to guard against litigation by ensuring the physical safety of their workers, but more of them must now add protections for psychological well-being, says a leading expert in work- place mental health. Martin Shain, a professor at the Dalla Lana School of Public Health at the Uni- versity of Toronto who also has legal train- ing, fi rst identifi ed the trend in a June 2009 report to the Mental Health Commission of Canada. In the report titled "Stress at Work, Mental Injury and the Law in Canada," he observed that the employee- employer relationship is rapidly changing thanks to a fl ood of case law precedents, new legislation, and tribunal rulings. Th ose authorities have forced employ- ers to not only protect workers' physical well-being but also their psychological safety, he argues. Shain describes a psycho- logically safe workplace as one that "per- mits no harm to mental health through negligence, recklessness or intention." An updated report on the issue, "Track- ing the Perfect Legal Storm," was issued in April. In it, Shain contrasts the current remedies available to employees with those on off er not long ago: "From a time no more than 10 years ago, when only egre- gious acts of harassment and bullying re- sulting in catastrophic psychological harm could give rise to legal actions for mental injury, we have arrived at a point where even the negligent and chronic infl iction of excessive work demands can be the subject of such claims under certain conditions." Employees' mental health has an un- mistakable impact on companies across Canada. A recent study indicates that 82 per cent of responding organizations said mental-health conditions were among their top three causes of short-term dis- ability. Th e study also highlights how the issue is increasingly aff ecting the bottom line given that fi nancial awards for dam- ages caused by mental injury or harm have risen by a whopping 700 per cent over the past fi ve years. Th ese striking numbers have prompted Shain to argue that companies can gain a competitive edge by prioritizing the men- tal health of employees since it encourages greater productivity and stronger recruit- ment and retention results, cuts costs for disability issues and absenteeism, and re- duces confl icts at work. While the stars seem to be aligning towards greater legal recognition for the infl iction of psychological suff ering in the workplace, the courts continue to juggle the issue. Th e Ontario Court of Appeal's recent decision in Piresferreira v. Ayotte, for ex- ample, suggests the courts remain reluc- tant to put mental injury on equal foot- ing with physical harm. Th e case involves former Bell Mo- bility account manager Marta Piresfer- reira, who sued the company and her former manager, Richard Ayotte, for mental suff ering. Th e lawsuit included references to an alleged incident in May 2005 in which the manager is claimed to have yelled and swore at Piresferreira for failing to set up a meeting with a client. At one point, Ayotte is alleged to have pushed Piresferreira's shoulder. Bell later issued Ayotte a warning and forced him to take confl ict-resolution courses. Meanwhile, Piresferreira took a leave of absence due to stress and pro- ceeded to sue the company for wrongful dismissal and tort damages. Th e case ended up at the province's top court, where a panel led by Justice Russell Juriansz ruled that the tort of negligent infl iction of mental suff ering is unavailable in the context of employ- ment relationships. Th e appeal court suggested such a provision would prove too cumbersome for the judiciary to enforce as it would involve an appraisal of work performance and the nature of worker-manager relationships. "It is unnecessary and undesirable to expand the court's involvement in such questions," wrote Juriansz. "It is 'The harm that's created in the work- place doesn't stay in the workplace,' says Martin Shain. undesirable because it would be a con- siderable intrusion by the courts into the workplace, it has a real potential to constrain eff orts to achieve increased effi ciencies, and the postulated duty of care is so general and broad it could ap- ply indeterminately." Th e court also emphasized that if em- ployees feel suffi ciently aggrieved, they can resign, sue for constructive dismissal or wrongful dismissal, and seek damages un- der breach of contract. Piresferreira is seeking leave to appeal the decision at the Supreme Court of Canada. While the ruling from Ontario's top court seems to be a setback for the reforms Shain envisions, he believes wise employment law practitioners will look more closely at what the court said in its decision. "A lot of legal blogs on that case have said, 'Oh, the green light to employ- ers — we can go out and do negligent infl iction of mental suff ering and not worry,'" says Shain, who has off ered to intervene in the case at the Supreme Court on behalf of the Canadian Men- tal Health Association. "Word to the wise there is that would be a pretty na- ive interpretation of that decision." John Yach of Ottawa's Shields & Hunt would agree. Yach, who represents Piresfer- reira, suggests the Ontario Court of Appeal's fi ndings rely heavily on jurisprudence relat- ing to dismissals. Yach hopes the top court will be persuaded by his argument that the case hinges on a fundamentally diff erent fact scenario and that employees should not be forced to resign in order to seek damages. "It's really no diff erent, in our mind, than discrimination in the workplace," says Yach. "If someone feels they are be- ing discriminated against on the basis of race or disability, they're not required to quit their job to seek a remedy . . . and that's the whole purpose of the law — to provide remedies to people." Shain's litigation trend certainly reso- nates in Ontario, where employers scram- bled in June to comply with Bill 168 amendments to the Occupational Health and Safety Act. Th e changes forced all em- ployers in the province to perform a risk assessment for violence and harassment in the workplace, follow up on it with the development of policies that target iden- tifi ed areas, and train staff accordingly. Considering that the act permits fi nes of up to $500,000 against companies, wise employers and their legal counsel didn't take the changes lightly. However, Osler Hoskin & Harcourt LLP associate Rebecca Reasner says it re- mains unclear just how much the new law will shift the courts' approach to allegations of mental abuse in the workplace. "It might aff ect how they view public policy arguments or how they view the issue in general, but I don't know that it would change the legal analysis," she says. So while remedies for employees facing mental abuse on the job are unclear, Shain maintains society will continue to pay for the damages regardless. "Th e harm that's created in the work- place doesn't stay in the workplace," he says. "Even the people that have won cases — while, true, they've had some compen- sation — they're unemployable. Th ey're basically mentally ruined in many senses. . . . So I hope we have a chance to look at some of the broader policy issues." 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• Cover
• For The Defence
• End Of An Era
• Focus On Labour and Employment Law