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Intentional Infliction of Mental Suffering

. Boucher v Wal-Mart Canada Corp.

In Boucher v Wal-Mart Canada Corp. (Ont CA, 2014), a wrongful dismissal case, the Court of Appeal addressed the elements of the tort of intentional infliction of mental suffering:
[41] The tort of intentional infliction of mental suffering has three elements. The plaintiff must prove:
• The defendant’s conduct was flagrant and outrageous;

• The defendant’s conduct was calculated to harm the plaintiff;

• The defendant’s conduct caused the plaintiff to suffer a visible and provable illness.
See Prinzo v. Baycrest Centre for Geriatric Care 2002 CanLII 45005 (ON CA), (2002), 60 O.R. (3d) 474 (C.A.).

......

[44] The plaintiff cannot establish intentional infliction of mental suffering by showing only that the defendant ought to have known that harm would occur. The defendant must have intended to produce the kind of harm that occurred or have known that it was almost certain to occur: see Piresferreira, at para. 78.
. McIlvenna v 1887401 Ontario Ltd.

In McIlvenna v. 1887401 Ontario Ltd. (Ont CA, 2015) the Court of Appeal set out the elements of the tort of intentional infliction of mental suffering:
[29] As for the tort of intentional infliction of mental suffering, this cause of action is comprised of the following elements: (a) flagrant and outrageous conduct; (b) calculated to produce harm; (c) which results in visible and provable injury: Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474 (C.A), at para. 43.

[30] The tort of intentional infliction of mental suffering is not actionable without proof of actual harm. This is because the basis of liability for this tort is not rooted in the trespass action, but is a descendant of the action on the case. A plaintiff must prove that he or she has suffered a recognized psychiatric illness to establish a cause of action: see A. Linden and B. Feldthusen, Canadian Tort Law, 9th ed. (Markham: LexisNexis, 2011), at p. 55. See also Frame v. Smith, 1987 CanLII 74 (SCC), [1987] 2 S.C.R. 99 at para. 46, referring to the need to establish “recognizable physical or psychopathological harm.”
. Merrifield v. Canada (Attorney General)

In Merrifield v. Canada (Attorney General) (Ont CA, 2019) the Court of Appeal discusses "IIMS" in the context of deciding whether a new tort of harassment is warranted:
II. THE INTENTIONAL INFLICTION OF MENTAL SUFFERING (IIMS)

[44] The tort of IIMS is well established in Ontario and may be asserted as a basis for claiming damages for mental suffering in the employment context.

[45] In the leading case, Prinzo v. Baycrest Centre for Geriatric Care, (2002) 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474, at para. 48, this court held that the test for IIMS is met where the plaintiff establishes conduct that is (1) flagrant and outrageous, (2) calculated to produce harm, and which (3) results in visible and provable illness.

....

Was IIMS established?

[54] The trial judge set out the test for IIMS outlined by this court in Wal-Mart. This requires a plaintiff to establish that the defendant’s conduct:

1) was flagrant and outrageous;

2) was calculated to harm the plaintiff; and

3) caused the plaintiff to suffer a visible and provable illness.
. Colistro v. Tbaytel

In Colistro v. Tbaytel (Ont CA, 2019) the Court of Appeal discusses the tort of intentional infliction of mental suffering:
II. INTENTIONAL INFLICTION OF MENTAL SUFFERING

The trial judge’s reasons

[14] The trial judge correctly summarized the three elements of the tort of intentional infliction of mental suffering:

1. Flagrant or outrageous conduct;

2. Calculated to produce harm; and

3. Resulting in a visible and provable illness.

[15] He noted, again correctly, that the first and third branches of the test are objective, and the second is subjective. Citing this court in Prinzo v. Baycrest Centre for Geriatric Care (2002), 2002 CanLII 45005 (ON CA), 60 O.R. (3d) 474 (C.A.), at para. 45, he wrote that the “calculated to produce harm” element is established “where the actor desires to produce the consequences that follow from the act, or if the consequences are known to be substantially certain to follow”. He referred to Piresferreira v. Ayotte, 2010 ONCA 384 (CanLII), 319 D.L.R. (4th) 665, at paras. 78-79, leave to appeal refused, [2010] S.C.C.A. No. 283, and instructed himself that the second element is not satisfied by evidence of foreseeability or reckless disregard: “Foreseeability, which indicates only that a result may follow, is much less than knowledge that a result is substantially certain to follow”. He also cited Piresferreira for the principle that while the extent of the harm suffered need not be anticipated, the kind of harm must have been intended or known to be substantially certain to follow.

....

[22] In Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419 (CanLII), 120 O.R. (3d) 481, at para. 44, Laskin J.A. , citing Piresferreira, summarized the relevant principle:
The plaintiff cannot establish intentional infliction of mental suffering by showing only that the defendant ought to have known that harm would occur. The defendant must have intended to produce the kind of harm that occurred or have known that it was almost certain to occur.
[23] In my view, Piresferreira does not require that the defendant must have intended to produce a particular, recognized psychiatric illness or have known that it was substantially certain to follow. The confusion arises from para. 79 of Piresferreira, where Juriansz J.A. commented that the evidence did not support the inference that the defendant intended or knew that it was substantially certain to follow that the plaintiff would suffer post-traumatic stress disorder or a major depressive disorder. However, subsequent passages in para. 79 indicate that Juriansz J.A. accepted that the requisite “kind of harm” in that case was the more general category of serious psychological injury. He wrote that, at most, the trial judge found that serious psychological injury was foreseeable and, “[f]oreseeability, which indicates only that a result may follow, is much less than knowledge that a result is substantially certain to follow.” The second element of the test was not satisfied in Piresferreira because the trial judge had wrongly applied a test of reckless disregard or reasonable foreseeability, not because the harm that was foreseeable was not of the right kind.

....

[26] As the trial judge noted, the second element of the test is subjective. Further, as Juriansz J.A. stressed in Piresferreira, where, as in this case, a plaintiff relies on the “substantially certain to follow” branch of the second element of the test, more than evidence of foreseeability or reckless disregard is required: Piresferreira, at paras.77-79; Boucher, at paras. 43-44. The bar is necessarily high where a defendant is to be liable for all of the consequences of an intentional wrongful act.

[27] The requirement that the defendant have intended to produce the harm that occurred, or known that the harm was substantially certain to follow as a result of his or her conduct, is an important limiting element of the tort and distinguishes it from actions in negligence. It is now well established that a plaintiff can recover in negligence for psychological injury. A plaintiff seeking recovery in negligence for mental injury must show that: (1) the defendant owed a duty of care to the claimant to avoid the kind of loss alleged; (2) the defendant breached that duty by failing to observe the applicable standard of care; (3) the claimant sustained damage; and (4) such damage was caused, in fact and in law, by the defendant’s breach: Saadati v. Moorhead, 2017 SCC 28 (CanLII), [2017] 1 S.C.R. 543, at para. 13; Mustapha v. Culligan of Canada, 2008 SCC 27 (CanLII), [2008] 2 S.C.R. 114, at paras. 8-9. Frequently, the issue will be whether it is reasonably foreseeable that a person of ordinary fortitude would suffer the mental injury incurred as a consequence of the defendant’s allegedly negligent behaviour. However, in Piresferreira, this court held, at paras. 50-63, that an employee cannot pursue a claim for negligent infliction of mental suffering in the employment context.
. Correia v. Canac Kitchens

In Correia v. Canac Kitchens (Ont CA, 2008) the Court of Appeal canvassed the issue of intentional infliction of mental distress:
(b) Analysis of the intentional infliction of mental distress claims

[81] In Prinzo v. Baycrest, supra, at paras. 34-64, this court confirmed (a) the three-pronged test to establish the tort of intentional infliction of mental distress and (b) that if it is established as an actionable wrong that is separate from wrongful dismissal, then damages for the tort of intentional infliction of mental distress can be awarded in the context of a wrongful dismissal action. Therefore, a claim for intentional infliction of mental distress should not be struck or dismissed only because it is raised in a wrongful dismissal context or because the facts giving rise to the claim may overlap with those that form the basis for aggravated or punitive damages from the wrongful dismissal.

[82] In Prinzo, this court, at paras. 44-46, adopted the formulation of the three-pronged test for the tort of intentional infliction of mental distress as set out by McLachlin J., as she then was, in the British Columbia Supreme Court decision Rahemtulla v. Vanfed Credit Union, 1984 CanLII 689 (BC SC), [1984] B.C.J. No. 2790, 51 B.C.L.R. 200 (S.C.). That case was somewhat similar to this one because it involved the abrupt termination of an employee based on a wrongful charge of theft. There, a bank teller was accused of stealing $2,000 that another teller could not account for and was summarily dismissed. She suffered mental distress and sued for wrongful dismissal, claiming separately for the damages she suffered for her mental anguish caused by the false allegation of theft and the fallout from that false accusation.

[83] McLachlin J. first analyzed the mental distress claim as part of the damages for breach of the contract of employment. She concluded that the damage did not flow from the failure to give adequate notice of dismissal, but from the employee's termination for theft without an opportunity to clear her name, which was not a breach of her contract of employment. Although the employee could not recover these damages as part of her damages from the wrongful dismissal, she could recover in tort. McLachlin J. found, at p. 214 B.C.L.R., that the bank manager "acted with a reckless disregard as to whether or not shock would ensue from his accusation" and that this was sufficient to make the infliction of mental distress willful. She had no trouble concluding, at p. 215 B.C.L.R., that the bank's conduct was outrageous: "Allegations of theft should not be made recklessly, without proper care for whether they are true or not."

[84] Finally, McLachlin J. concluded, at p. 215 B.C.L.R., that the bank's conduct was calculated to produce the effect it did because[page381]
. . . [i]t was clearly foreseeable that the accusations of theft which the defendant made against the plaintiff would cause her profound distress. That distress could only be exacerbated by the defendant's failure to conduct a proper investigation or allow the plaintiff to defend herself.
[85] In Prinzo, at para. 45, this court used similar language noting that this element is made out "if the consequences are known to be substantially certain to follow". It is implicit in the reasons of the motion judge that she was satisfied on the facts before her that Canac's conduct could be found to meet the three-pronged test. It was flagrant and outrageous; it was calculated to cause the distress it did because it was clearly foreseeable that it would; and it caused Mr. Correia significant mental distress. We agree with this conclusion and that there is therefore a triable issue in respect of the intentional infliction of mental distress claim against Canac.

[86] It is also implicit in her reasons that the motion judge would have allowed the claim to go ahead against Marilyn Smith, but believed that an action could not be brought against her personally because she was acting in the course of her employment. The motion judge erred in law in this respect. An employee acting in the context or course of employment can be personally responsible in law for his or her tortious conduct: see: London Drugs v. Kuehne & Nagel International Ltd., 1992 CanLII 41 (SCC), [1992] 3 S.C.R. 299, [1992] S.C.J. No. 84; Alper Development Inc. v. Harrowston Corp. (1998), 1998 CanLII 2237 (ON CA), 38 O.R. (3d) 785, [1998] O.J. No. 1199 (C.A.); ADGA Systems International Ltd. v. Valcom Ltd. (1999), 1999 CanLII 1527 (ON CA), 43 O.R. (3d) 101, [1999] O.J. No. 27 (C.A.); Meditrust Healthcare Inc. v. Shoppers Drug Mart, a division of Imasco Retail Inc., 1999 CanLII 2316 (ON CA), [1999] O.J. No. 3243, 124 O.A.C. 137 (C.A.).

[87] Carthy J.A. explained in ADGA Systems, supra, at p. 106 O.R., that the effect of the rule in Said v. Butt is not that it grants immunity for any wrongdoing to employees acting in the course of their employment, but that it grants an exception from personal liability for employees or officers of companies who terminate contracts on behalf of their corporate employers:
[The rule in Said v. Butt] provides an exception to the general rule that persons are responsible for their own conduct. That exception has since gained acceptance because it assures that persons who deal with a limited company and accept the imposition of limited liability will not have available to them both a claim for breach of contract against a company and a claim for tortious conduct against the director with damages assessed on a different basis. The exception also assures that officers and directors, in the process of carrying on business, are capable of directing that a contract of employment be terminated or that a business contract not be performed on the assumed basis that the company's best interest is to pay the damages for failure to perform. By carving out the exception for these policy reasons, the court has emphasized and left intact the general liability of any individual for personal conduct. [page382]
[88] Marilyn Smith was the person who terminated Mr. Correia and facilitated turning him over to the police to be charged with criminal offences following the negligent investigation, in which she herself made the error that caused blame to be falsely cast on him. In law she may be held personally liable for her conduct. The rule in Said v. Butt does not apply here because we are talking about responsibility for a separate actionable tort, not for the wrongful termination of the contract of employment itself.

[89] A similar analysis must be applied to the Aston defendants as to the Canac defendants. The motion judge did not consider their conduct sufficiently outrageous to meet the first prong of the test for intentional infliction of mental distress. That conduct will now be the subject at trial of an action for negligent investigation. If it is found that Aston was negligent in its investigation, in the context where it knew the serious consequences of a wrongful charge of criminal conduct against an employee, its conduct may well be found to be outrageous and to meet the requirement for intentional infliction of mental distress. When the motion judge's reasons for dismissing the claims for intentional infliction of mental distress against the Aston defendants are viewed in light of this possibility, as well as the motion judge's decision to permit this claim to proceed against Canac, we find that her clarifying reasons do not provide a sufficient basis for granting summary judgment in favour of Aston or its employees on this cause of action.

[90] The final defendant is Kohler. It appears that Kohler was not separately considered by the motion judge. There is no basis at this stage to distinguish Kohler's role from Canac's role in the investigation and the actions taken against Mr. Correia for the purpose of considering the claim for intentional infliction of mental distress. For the reasons that the claim can proceed against Canac and Smith, it can also proceed to trial as against Kohler.




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