In Lalonde v Sena Solid Waste Holdings ( 2017 ABQB 374 ) Justice Gill awarded $75,000 in aggravated damages to a 57 year old Millwright with 4 years service. He was also awarded 6 months notice .
This was the reasoning behind this award ;
2 In this case, I am satisfied that the actions of the Defendant amount to a breach of the obligation of good faith and fair dealing and support an award of aggravated damages. Those actions include the following:
1) The Plaintiff was summarily terminated after being accused of serious safety violations and insubordination relating to alleged retention of salvageable equipment and scrap metal and failure to supervise an unassigned contract worker.
2) The Defendant maintained these allegations which are described in the Statement of Defence as “serious safety violations and insubordination” from the date of suspension in June, 2012 until shortly before trial in May 2017 at which time they withdrew those allegations.
3) Two days after the Plaintiff’s suspension, without regard for his explanation and without giving him an opportunity to fully explain the alleged misconduct, a decision was made to terminate his employment on the 15th of June. An internal memo from the Maintenance Manager, Mr. Goegan, to the HR Manager, Ms. Burr, shows a decision had been made to terminate the Plaintiff; this despite not having any response from the Plaintiff as to the alleged breaches of conduct. The Defendant ignored a letter from an employee (Larry Dakin) which supported the Plaintiff’s contention that he had done nothing wrong in relation to the alleged lack of supervision of a contract employee. The evidence supports the conclusion that the internal investigation was essentially a sham.
4) The nature of the allegation concerning the mishandling of salvageable equipment and scrap metal implied some form of illegal conduct or dishonesty on the part of the Plaintiff. This suggestion can be found in the Statement of Defence where the Defendant outlined in detail the alleged cause for termination using such wording as “the plaintiff’s serious safety violations and insubordination.” The Statement of Defence suggested that the dismissal for cause included “unsatisfactory performance, dishonesty, insubordination, serious misconduct.” In the Statement of Defence the Plaintiff’s misconduct is described as constituting “serious misconduct, insubordination and conduct constituting cause.” It is stated that “the Plaintiff’s misconduct was such that it interfered with and prejudiced the safe and proper conduct of the SHTC thereby, justifying cause for immediate dismissal.”
73 Other examples include paragraph 36 in the Statement of Defence which indicates that the Defendant “could not justify continued employment of the Plaintiff given his cavalier attitude toward safety and clear lack of respect for his Supervisor’s authority” [Emphasis added].
74 Paragraph 37 states:
The conduct of the Plaintiff constitutes:
a) Breach of express or implied terms of the Plaintiff’s Employment Agreement;
b) Breach of express or implied terms of the Plaintiff’s Agreement to abide and be bound by SHTC’s Safety Manual and its Safety Policies and Procedures;
c) Disregard for his safety, the safety of his coworkers and the community;
d) Insubordination; and;
e) Incompetence or negligence.
75 I note also that there was evidence of the impact that the actions of the Defendant, before and at the time of dismissal, has had on the Plaintiff. I note that while the evidence from the Plaintiff’s wife was in letter form it was not contradicted and was supported in substance by the sworn evidence of the Plaintiff. As already discussed, the letter describes how the termination has greatly affected their relationship and how the Plaintiff is now depressed, miserable and uninterested in activities and relationships with family members that he previously relished. She explains the economic, physical and mental stress that he had gone through. In addition, his reputation has suffered. I note also, that the Plaintiff lives in a small town, and the Defendant was one of the larger employers located close to the small community where the Plaintiff lived and it is reasonable to infer that the information concerning his termination and the ongoing allegations may have had an effect on both his reputation in the community and also his ability to obtain similar work due to the rumors surrounding his termination.
76 I note also that the Plaintiff’s EI benefits were delayed as a result of the allegations of cause made by the Defendant at the time of the dismissal.
77 In summary, I am satisfied that the Defendant’s conduct during the course of dismissal was unfair, breached the requirement of good faith and the expectation that both parties to the contract had that the employer would act in good faith in the manner of dismissal.
78 The Plaintiff has proven that the manner of dismissal caused mental distress, particularly by the Defendant’s actions in attacking the Plaintiff’s reputation at the time of dismissal and representing that there was sufficient cause for dismissal for an extended period of time.
79 The Plaintiff seeks aggravated damages in the amount of $125,000.00. Reviewing the case law relied upon by the Plaintiff, including Karmel v. Calgary Jewish Academy, 2015 ABQB 731 (Alta. Q.B.) [“Karmel”] and Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (Ont. C.A.) [“Boucher”], I find the amounts awarded in those cases to be inappropriate for the facts of this case. In Karmel and Boucher the actions of the employers were much more prolonged, serious and arguably vindictive, thus in those cases the conduct supported a claim of $200,000 in aggravated damages.
80 In this case there was abusive conduct leading up to the dismissal, inappropriate and false reasons for dismissal and an inadequate and unfair investigation. The plaintiff did not receive procedural fairness. I would characterize the actions of the Defendant in this case to be less serious and egregious than in both Boucher and Karmel thereby warranting lower damages. Although the Defendants actions appear not to have been vindictive, they were intentional, unnecessarily prolonged and caused the Plaintiff significant mental distress. The wrongful allegations were maintained for almost 5 years causing the Plaintiff considerable mental distress during and after his sudden termination. He was publicly humiliated at the time of dismissal and the humiliation continued as rumors concerning the reasons he was dismissed continued to circulate. Consequently substantial aggravated damages are justified for the Defendants failure to comply with their duty to act in good faith.
81 It is difficult to quantify an award of aggravated damages. No case is identical or directly applicable. The following cases displayed similar unfair and insensitive conduct to what occurred in this case. Doyle v. Zochem Inc., 2016 ONSC 3188 (Ont. S.C.J.), aff’d 2017 ONCA 130 (Ont. C.A.) -$60,000; Strudwick v. Applied Consumer & Clinical Evaluations Inc., 2016 ONCA 520 (Ont. C.A.) -$70,000; Zesta Engineering Ltd. v. Cloutier, 2010 ONSC 5810 (Ont. S.C.J.), additional reasons 2013 ONSC 385 (Ont. S.C.J.), reversed in part on other grounds 2014 ONCA 762 (Ont. C.A.) -$75,000; Tim Ludwig Professional Corp. v. BDO Canada LLP, 2017 ONCA 292 (Ont. C.A.) -$100,000 aggravated damages in a Partnership Context; Price v. 481530 B.C. Ltd., 2016 BCSC 1940 (B.C. S.C.) – $50,000 aggravated damages; Pate Estate v. Galway-Cavendish and Harvey (Township), 2013 ONCA 669 (Ont. C.A.) — $100,000. Taking into account the evidence in this case and the jurisprudence, I award aggravated damages in the sum of $75,000.
I like the fact that the Judge clearly articulated the reasons for finding that the employer breached their duty of good faith.
I also like the fact that the judge referred to the devastating effect of the termination on the Plaintiff’s personal life and that he accepted that evidence without the requirement of an expert medical opinion that the Plaintiff was truly depressed and upset about the false accusations made against him.
In fact, it seems that the Judge approached the damages as if it were a defamation claim, in which expert evidence is not required to prove damage to reputation.
This approach makes it easier and cheaper to prove moral damages.