Beware of Making Excessive Request for Particulars :

In Certified Equipment Sales v Iuorio, 2024 ONSC 2948, Justice Vermeer was hearing a motion for particulars in a case involving accusations of sexual harassment by an employee against the owner of the employer .

The Employer made 35 demands, claiming that without them, they could not file a defence.

Here is an example of the type of particulars requested and the Judges’, comments :

Demand #17
The statement in Iuorio’s pleading:
[Mr. Corbo] installed GPS monitoring devices on Ms. Iuorio’s cell phone and later her vehicle, which he used extensively to monitor her off-duty conduct.
Demand for Particulars:
Full particulars on how, where and when Mr. Corbo allegedly extensively monitored “her off-duty conduct” and “physically monitored Ms. Iuorio’s home”.
Iuorio’s Position: She has no further particulars to give with respect to this demand.
Mr. Corbo’s Reply:
Mr. Corbo cannot admit or deny this allegation without further particulars.

[13] I find it ridiculous that Corbo claims that he cannot admit or deny whether he put tracking devices on the responding party’s phone and car in order to monitor her, without further particulars. He certainly has fallen far short of showing that such information is not within his knowledge. Moreover, any further particulars, would be the evidence Iuorio has regarding him monitoring her through tracking devices and he is not entitled to her evidence on this issue at the pleading stage.

Here is another example of where the Judge denied the request :

In oral submissions, Corbo’s counsel particularly and repeatedly emphasized the vagueness of the allegation of, “physical contact in the hallways”, suggesting that it was so vague, it could refer to unwanted intercourse or
kissing. However, given that Iuorio has sworn in an affidavit that she cannot provide any further details of the physical contact that contributed to the sexual harassment, it defies common sense that the physical contact would involve unwanted intercourse in a hallway at work, or similarly unwanted kissing in a workplace hallway. Those are details she would be able to provide.

The Judge also negatively commented on the Employer’s counsels’ behaviour during the cross examination of his client on the affidavit filed in support of the motion and on counsel’s allegation that the employee’ lawyer had acted inappropriately.

30] Moreover, I find that making unfounded allegations of impropriety of opposing counsel should not be taken lightly. I further accept that Corbo’s counsel improperly frustrated the cross-examination of his client. I therefore find that the responding party is entitled to costs on an elevated basis.

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Mental Distress Damages Do Not Require Medical Report or a Medical Diagnosis.

In Krmpotic v Thunder Bay Electronics Limited , 2024 ONCA 332 the Court upheld a $50,000 award for aggravated damages due to the manner of the dismissal and the Plaintiff’s reaction to that treatment .

The Court had no problem upholding the trial judges decision in spite of the fact that the Plaintiff did not present any expert  medical evidence as to a specific medical diagnosis.

This is what they said :

[32]      The duty of honest performance applies to all contracts, including employment contracts. It encompasses the employer’s duty to exercise good faith during the course of dismissal from employment. Breach of the duty of good faith occurs through conduct that is unfair or made in bad faith, as for example, by being “untruthful, misleading or unduly insensitive”. Callous or insensitive conduct in the manner of dismissal is a breach of the duty to exercise good faith.

[33]      While the normal distress and hurt feelings resulting from dismissal are not compensable, aggravated damages are available where the employer engages in conduct that is unfair or amounts to bad faith during the dismissal process by being untruthful, misleading, or unduly insensitive, and the employee suffers damages as a consequence. As the trial judge noted, in Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, 120 O.R. (3d) 481, at para. 66, this court confirmed that aggravated damages compensate an employee for the additional harm suffered because of the employer’s conduct.

[34]      Mental distress is a broad concept. It includes a diagnosable psychological condition arising from the manner of dismissal but is not limited to that. There is a spectrum along which a person can suffer mental distress as a result of the manner of dismissal. At one end is the person who suffers the normal distress and hurt feelings resulting from dismissal, which are not compensable in damages. At the other end of the spectrum is the person who suffers from a diagnosable psychological condition as a result of the manner of dismissal. In between those two end points, there is a spectrum along which the manner of dismissal has caused mental distress that does not reach the level of a diagnosable psychological injury.

[35]      In my view, on a full reading of his reasons, the trial judge approached the issue of mental distress in that fashion. The fact that Mr. Krmpotic had not established, through medical evidence, that he had suffered a diagnosable psychological injury, was not the end of a consideration of the issue of mental distress damages. As the trial judge correctly understood, he had to go further and determine whether (1) the appellants’ conduct, during the course of termination amounted to a breach of their duty of honest performance; and (2), if so, whether Mr. Krmpotic suffered harm – beyond the normal distress and hurt feelings arising from dismissal – as a result of that breach. The trial judge found in Mr. Krmpotic’s favour on both matters: the appellants had engaged in conduct that amounted to bad faith during the dismissal process; and, Mr. Krmpotic suffered harm beyond the normal distress and hurt feelings that result from dismissal. These findings were fully open to the trial judge.

Also of interest is what the Court found was callous and insensitive employer behaviour.

[36]      The trial judge found that Mr. Caron breached the duty of good faith in the manner of dismissal in a number of ways. Mr. Caron claimed that Mr. Krmpotic had been dismissed for financial reasons and that the appellants’ financial statements would support that claim. However, he refused to produce the financial statements. Further, while the trial judge found that Mr. Caron was not directly untruthful with Mr. Krmpotic during the termination meeting, he had “no hesitation” in finding that Mr. Caron was neither candid nor forthright. He found that Mr. Krmpotic’s employment was terminated because his physical limitations restricted him from continuing to perform the wide array of job duties and responsibilities that he had performed for the appellants over the previous 29 years. He described Mr. Caron’s conduct during the termination process as the antithesis of what is required by the duty of good faith in dismissal. Mr. Krmpotic was terminated within two hours of returning to work after his back surgery. During the termination meeting, instead of being candid, reasonable, honest, and forthright, Mr. Caron engaged in conduct that was untruthful, misleading, and unduly insensitive.

My Comments:

As the trial judge found that the real reason the Plaintiff  was terminated was his physical limitations, this would seem to be a clear violation of the duty to accommodate under the Human Rights Code, which is much simpler argument than a bad faith argument. Moreover, under a human rights analysis, the damages could have been much larger as his damages would not be limited to the 24 month notice period  awarded by the Court as you are to put the Plaintiff in the same position had he not been discriminated against. This could lead to potential damages for the balance of his working life, just like in a personal injury loss of future income claim.

Also of note is that the employer had already paid the Plaintiff 16 months notice.

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