In Cottrill v Utopia Day Spas and Salons ( 2018 BCCA 383) Justice Goepel reviewed a mental distress award of $15,000. In this decision the Judge reiterated in order to win aggravated damages the Plaintiff must prove 4 elements :
a) That the employer engaged in conduct during the course of the dismissal that was unfair or in bad faith , AND
b) That the manner of dismissal caused the mental distress, AND
c) That the damages must be more than the normal distress and hurt feelings resulting from dismissal AND
d) There must be real demonstrable evidence regarding the mental distress .
Here is the quote regarding the 4th requirement.
In this case, as in Lau , there was no evidence from the plaintiff or from family members, friends or third parties concerning the impact of the termination on Ms. Cottrill and her mental state. Although not required, there was no expert evidence, medical or otherwise. The only evidence of mental distress is that Ms. Cottrill cried during the March meeting, following which she had to go home early because she was so upset, and that at the June meeting, she went numb and could not take anything in. The evidence of Ms. Cottrill’s reactions at the two meetings at its highest establishes a transient upset. It falls well short of the legal standard that requires a serious and prolonged disruption that transcends ordinary emotional upset or distress.
Remember this was a fairly modest award for aggravated damages and still the Court required real third party evidence of the mental distress.
What is interesting about the trial decision is that the Judge found that the Plaintiff’s employment agreement had an enforceable ESA termination clause so that her recovery was limited to a lousy 8 weeks pay.
I suspect that the trial judges willingness to award aggravated damages was in part influenced by his inability to award reasonable notice. The trial judge seemed determined to award this plaintiff more than her minimal contractual entitlement. After all, she was a 11 year employee who was fired for poor performance and given no termination pay at all.
Call me a cynic or a realist, but I bet that if there was no termination clause, the judge would have awarded her a generous notice period and nothing for aggravated damages.
But what do I know. I am just meditator.