In Johnston v The Corporation of the Municipality of Arran-Elderslie Justice Conlan awarded a Chief Building Official ( CBO) $200K in punitive damages and $100K for aggravated damages.
With the full knowledge of his employer, the Plaintiff had, in addition to his job as CBO, a private design company in which he designed buildings. The Court found that he was permitted by the employer to conduct inspections on buildings that he had designed himself. The Court noted that this was a conflict of interest but that as the employer had full knowledge of the conflict, this action could not be just cause.
The real allegation of cause had to do with the issue of whether the Plaintiff tried to deceive from his employer his involvment in two inspections on buildings that he had designed.
The Court found that there was no such deception and in fact it looked like certain persons at the employer may have “set up” the evidence so as to try to get the Plaintiff fired.
Citing a similar case called Pate v Galway-Cavendish ( Township( ( 2011 ONSC 3594) the judge found that punitive damages were appropriate for the following reasons:
[158] Similarly, Johnston’s career as a CBO has never recovered since June 2009, despite numerous job applications that he has submitted. His marriage ended in part due to the events leading up to and on June 25, 2009. His private design business fell nearly dormant during the latter half of 2009. And the repeated media coverage, in a small area, partly inaccurate, caused Johnston much embarrassment and humiliation.
[159] The especially egregious conduct of the Township in Mr. Pate’s case, in withholding exculpatory evidence, is not present in our matter. Having said that, the manner in which Johnston was fired is very concerning to this Court.
[160] To invite Johnston to attend at the Municipal building on June 25, 2009, and not tell him why, and have police there to essentially guard him, and have a termination letter and press release already prepared, and ambush him with some kind of interrogation by Tunnock, and then put out for public consumption a grossly misleading statement that gave the false impression that Johnston was banned outright from designing buildings located within the Municipality, was very unfair, in my view.
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[162] In my opinion, quite apart from the unjustified termination of Johnston’s employment, the manner of his dismissal amounts to a wrong that is deserving of an award of punitive damages.
The Court also awarded $100,000 for aggravated or moral damages, with the following reasoning.
[164] Turning to aggravated damages, sometimes referred to as moral damages, Johnston must “prove actual damages resulting from the employer’s conduct in the manner of dismissal that exceed the normal distress associated with dismissal. This is a high evidentiary threshold that many plaintiff employees will simply not be able to meet”. 2018 Update on Extraordinary/Moral/Aggravated Damages, by Alan Whyte.
[165] Moral damages are compensatory in nature. This Court should ask itself whether the Municipality engaged in conduct during the course of Johnston’s dismissal that was “unfair” or “in bad faith” and caused Johnston mental distress that went beyond “normal distress and hurt feelings resulting from a dismissal”. 2018 Update, supra, quoting from Keays v. Honda Canada Inc., 2008 SCC 39 (CanLII), at paragraphs 56 and 57.
[166] I disagree with the Municipality that there is no evidence apart from Johnston’s own testimony to substantiate his claims about weight loss, the demise of his marriage and the inordinate stress that he was under just before and after June 25, 2009. There is also the corroborative evidence of Donna and McLean.
[167] I am of the opinion that the Municipality acted in bad faith in having Johnston attend at the Municipal building on June 25, 2009 and then surprise him with another “audit”, the result of which was a forgone conclusion given that Council had already decided to terminate him earlier in June, and the ink was still wet on the dismissal letter and press release.
[168] I am also satisfied that Johnston’s mental distress on and after the date of his dismissal went beyond that reasonably expected of any employee who is fired. Weight loss, loss of appetite, irritability, sleeping problems, marital breakdown, and social isolation were just some of the emotional consequences suffered by Johnston as a direct result of his harsh dismissal. I accept the evidence of Johnston, his mother and, to some degree, McLean in support of those findings.
[169] Johnston is entitled to an award of aggravated damages. On quantum, I must keep in mind the overall principle of proportionality. I have already decided to punish the Defendant with a sizeable award of punitive damages. The potential for double recovery must be guarded against.
[170] I do not agree with the Plaintiff’s suggestion of aggravated damages in an amount equivalent to what Johnston would have earned over the course of his contract that existed on the termination date. That is not the proper measure of aggravated or moral damages. It sounds more like the concept of expectation damages for breach of contract.
[171] In Pate, supra, the mental distress suffered by the dismissed employee was no greater in degree than that sustained by Johnston. Mr. Pate was awarded $75,000.00 in aggravated damages. That quantum was not disturbed on appeal.
[172] I award to Johnston the sum of $100,000.00 in aggravated damages. Although that is a little higher than what was given to Mr. Pate, I have taken into account the total award of both aggravated and punitive damages in the two cases.
My Comments:
This case just reinforces my belief that there is little ascertainable difference between the grounds for punitive damages and aggravated/ moral damages.
The judge mentions the same following issues in both the reasoning for punitive and aggravated damages:
- The collapse of the plaintiff’s marriage .
- The manner of the dismissal.
- The publishing of the false reasons for the dismissal.
In my opinion the law would be better served in we collapsed both these concepts into one and simply awarded damages beyond reasonable notice where the conduct of the employer was outrageous and/or outside the range of conduct that we as a society expect from employers and employees.