Followers of court decisions might be forgiven for thinking that large damage awards given by lower courts tend to be overturned by the courts of appeal. This is, in fact, often the case and perhaps that’s the way the system should work (lower courts stretching the boundaries of previous decisions and the higher courts stepping in when the limits have been stretched too far).
There are many instances of this trend in the employment context. A recent example involved the record-setting $500,000 punitive damages award by a lower Ontario court against Honda Canada. That whopper of an award was reduced to $100,000 upon appeal.
In B.C., however, we have a recent example which bucks that trend. The case, Sulz v. Canada (Attorney General) featured a claim by a former R.C.M.P. officer that her immediate supervisors harassed her to the point of clinical depression. Her depression reached the stage at which she had no choice but to accept a medical discharge from the force.
Sulz commenced court claims arising from the conduct of her staff sergeant and two other supervisors in her detachment. She claimed she was mistreated over a two year period culminating with her taking a sick leave in 1996 and eventually accepting a medical discharge in 2000.
By all accounts, Sulz had an exemplary record early in her career as a police officer in Merritt. That changed in 1994 with the arrival of a new staff sergeant in the role of detachment commander. When Sulz became pregnant is when it seems her problems with the staff sergeant began.
She complained that her superior officers used harsh language, went out of their way to penalize her for supposed breaches of policy, and made derogatory remarks about her in the presence of other detachment staff. She also alleged that her superiors claimed she had become pregnant to exploit the system and that they made threats she would suffer for her conduct.
Sulz claimed she was ostracized from the other officers in the detachment and that her superiors alleged she had a drug dependency problem. The instances of all these types of alleged misconduct were numerous.
All of this left Sulz with an extreme form of depression. She felt distressed, lost her appetite, couldn’t sleep properly, and was constantly on the verge of emotional breakdown. She became terrified of going to work, had trouble remembering things, and was generally in poor physical and mental health. She was diagnosed as having a major depressive disorder, went on sick leave in 1996, and never returned to work.
Sulz sued for breach of contract and for negligent infliction of mental suffering. The Supreme Court of B.C. upheld the claim, finding the conduct of the staff sergeant (and others) to be objectionable. The Court concluded the staff sergeant was prone to angry outbursts, particularly in relation to Sulz. His behaviour was intemperate and at times unreasonable.
The staff sergeant did little to curb his temper, he was causing serious emotional problems for her, and his frequent outbursts and cutting comments were major causes of the troubled work environment she experienced. His conduct violated the R.C.M.P. harassment policy and his breach of the duty of care he owed her caused her serious psychological harm.
Sulz’s physician diagnosed her with a major depressive disorder and concluded she would continue to suffer depression to some extent for the remainder of her life. The evidence was that she was left competitively unemployable (in that she was only capable of working at uncomplicated tasks on a part-time basis, in a stress free environment).
The Court awarded Sulz past and future wage loss damages of $825,000 and general damages (as a result of the emotional impact on her of the treatment she endured) of $125,000. The bulk of the award, $600,000, was for future wage loss – in this regard the Court was heavily reliant upon the medical assessment of her inability to ever return to gainful employment.
That award was appealed and B.C.’s Court of Appeal recently released its decision. Four grounds for appeal were raised, all of which were very technical in nature. The significant aspect of the award, practically speaking, is that the Court of Appeal resisted finding a basis for reducing the award of future wage loss damages.
The scale of those damages (combined with the fact that the harassment, while substantial, certainly wasn’t at the most severe end of the scale) means plaintiffs will increasingly frame their claims to obtain similar awards. That will be bad news for employers who fail to control their supervisors’ and managers’ behaviour.