CITATION: Amaral v. Canadian Musical Reproduction Rights Agency Limited, 2009 ONCA 399
DATE: 20090513
DOCKET: C47557
COURT OF APPEAL FOR ONTARIO
Gillese, MacFarland and LaForme JJ.A.
BETWEEN:
Maria Amaral by her Litigation Guardian Keith Amaral, Lucy Medeiros, Antonio Amaral, Keith Amaral, Matthew Amaral and Laura Amaral
Plaintiffs (Appellants)
and
Canadian Musical Reproduction Rights Agency Limited, David A. Basskin, Fred Merritt, and Carolyn Rioux
Defendants (Respondents)
D. Joel Dick and Brian A. Pickard, for the appellants
Melany Franklin and Rebecca Bush, for the respondents
Heard: January 29, 2009
On appeal from the judgment of Justice Ruth Mesbur of the Superior Court of Justice dated July 25, 2007.
MacFarland J.A.:
[1] The central ground of appeal is that the trial judge failed to consider the cause of action advanced on behalf of the appellant. The appellant pursued her case, it is argued, as a negligence case and sought damages for the negligent infliction of mental harm that they argue is a free standing tort and the equivalent of nervous shock. In addition it is argued the respondents negligently supervised the appellant thereby causing her compensable damages.
THE FACTS
[2] At its commencement, the appellant’s action was one for wrongful dismissal and related relief. However, by the time it came to trial the sole causes of action advanced by the appellant were intentional and negligent infliction of mental suffering and negligent supervision.
[3] The respondent, the Canadian Musical Reproduction Rights Agency Ltd. (CMRRA) is a not for profit collective representing the majority of musical copyright holders in Canada. The individual respondents are members of CMRRA’s senior management: Mr. Basskin is the organization’s President, Mr. Merritt is its Vice President and Ms. Rioux is the Director of Operations and was the appellant’s immediate superior at the relevant time.
[4] The appellant Maria Amaral worked in the office of CMRRA for 23 years and was at the time of her departure from the company, supervisor of royalties.
[5] The appellant’s difficulties began at the time the respondent company had begun a major restructuring of its operations. The number of employees increased from 40 to 60 as the company moved from an “assembly line” model to a “teams” or “pod” approach in 2000. At the same time the company began to move its royalty processing from an intensely paper world to an electronic one.
[6] In May 2000 a manager’s position in the appellant’s department became vacant and was not immediately filled. On the evidence, the appellant began to take on some of the work formerly done by the manager and in July 2000 the appellant approached Merritt to see if she might be promoted to manager of royalties. She felt she deserved the title and Merritt suggested she speak with Rioux. Her request was not granted.
[7] Subsequently when Rioux asked the appellant to write a letter for her, the appellant refused and set out her position in an email to Rioux on August 10, 2000 as follows:
As I’m sure that you’re aware, this letter is something that the Manager of Royalties would do. Since I am not the Manager of Royalties, I am not in a position to write such a letter and as such cannot add any more responsibility or work to my plate. If my role as Supervisor of Royalties is to change, then I suggest that we please arrange a time to discus this further. Until then, I will continue to proceed with my duties as they are and have been.
[8] The appellant’s refusal to write the letter bordered on insubordination and as a result she was called to meet with management. A letter confirming the substance of those discussions was later placed in her personnel file. A week after receipt of this letter the appellant attended at her family doctor and was diagnosed with acute depression for which she was prescribed a sleeping medication and Paxil, an anti-depressant.
[9] Throughout the fall, as the trial judge noted, the appellant continued to feel resentful of Rioux. Her performance declined and attendance and punctuality became an issue. Rioux assumed it was because the appellant was a disgruntled employee who had not been promoted. In January 2001 there were serious errors occurring in the implementation of the electronic system in the royalty department. Rioux determined that the functions needed to be supervised more closely and divided the supervisory duties of the royalty department in two with the appellant holding the title and responsibilities of supervisor of royalty distribution and another employee supervisor of royalty processing. The appellant viewed this action as a demotion and a blow to her self esteem.
[10] The appellant’s difficulties with attendance and punctuality were another source of conflict between the appellant and her employers. The appellant always made up any time missed and felt unfairly dealt with while Rioux felt that as a supervisor the appellant should be setting a good example to her staff.
[11] These attendance issues came to a head April 12, 2001, when the appellant was away from work for an entire morning to attend a special mass for her late mother. She had not notified Rioux - to whom she reported - beforehand nor had she disclosed the reason for her lateness in the employee database as required.
[12] Rioux reprimanded the appellant for her lateness. The appellant became upset and began crying. She felt she was being treated unfairly and even discriminated against because of her religion and wore dark glasses to a work party that afternoon to hide the fact she’d been crying.
[13] On May 1, 2001, Rioux again met with the appellant to discuss her attendance. Merritt was asked to come to the meeting when the appellant again raised the issue of discrimination. When the appellant became upset the meeting was adjourned with nothing resolved. Later that day Rioux left a notice of reprimand on the appellant’s desk warning her that a failure to report to work on time or leave a voicemail of potential lateness would result in future disciplinary action up to and including termination.
[14] The appellant attended work as usual on May 2 and 3. On May 4, however she did not go to work and instead attended at her doctor’s office where she presented as suicidal. She suffered a complete mental breakdown and to date has not returned to gainful employment.
[15] In his note dated May 7, 2001, to the respondent, the appellant’s doctor did not disclose the reason for her absence from work. He simply stated that she was ill and would be unable to work for a month.
[16] On May 15 and 30 Basskin wrote to the appellant to inquire of her status but received no response. Merritt called her on the telephone several times but his calls were not returned.
[17] Basskin again wrote to the appellant June 7, 2001. At that point the appellant had been gone for over a month and all the respondent employer had was a further cryptic note which stated “This patient continues under my care”. Basskin asked for “some general idea of what’s wrong and how long you anticipate being away …”. She was told of the obvious difficulties in planning the operations of her department with no response from her. She was also told her duties had been permanently re-assigned and that she would be assigned work appropriate to her abilities and medical condition upon her return, after her performance review was completed.
[18] The only response to this letter was service of the Statement of Claim two weeks later.
ANALYSIS
[19] The trial judge concluded that “there is no specific tort of negligent infliction of mental suffering available to the plaintiffs” and it is essentially with her finding that the appellants take issue.
[20] The trial judge concluded that such a claim was precluded by the Supreme Court of Canada’s decision in Wallace v. United Grain Growers, 1997 332 (SCC), [1997] 3 S.C.R. 701.
[21] Contrary to the assertion of counsel in argument in this court, the trial judge did not “fail to analyze” the appellant’s claim in negligence. She very clearly did so in paragraphs 326 through 329 of her reasons for judgment; she concluded at para. 329 that there is no specific tort of negligent infliction of mental suffering available to the plaintiffs.
[22] The trial judge said she had not been referred to any case in which the court has found negligent infliction of mental suffering as an independent actionable tort. In the cases to which reference was made where courts found that an employer owes a duty to employees to treat them fairly, with civility, decency, respect and dignity, the breach of that duty is a breach of the employment contract exposing the employer to a claim for constructive dismissal. All of the cases upon which the appellant relies were cases which included claims for wrongful dismissal, as was the case of Piresferreira v. Ayotte (2008), 67418 (Ont. S.C.) released after the judgment in the case at bar. There is no case cited before this court which holds that an employee has a free-standing cause of action, in tort, for negligent infliction of mental suffering against his or her employer absent any allegations of breach of the contract of employment between the two.
[23] In this case it is not necessary to decide that issue. For the purpose of this appeal I assume without deciding, that such a duty does exist in law. Even so, in my view, the appellant cannot succeed in view of the factual findings made by the trial judge.
[24] The trial judge concluded that the appellant’s problems began when she was not promoted to manager of the royalties division in which she worked in the summer of 2000. It was a week after the appellant’s refusal to write the BMG letter for Rioux and her subsequent reprimand that the appellant was diagnosed with depression and prescribed a sleeping medication and the anti-depressant, Paxil. Throughout the fall of 2000 she continued to feel resentful about the fact she had not been promoted while others around her, as part of the company’s re-organization, were.
[25] Her punctuality and missing time from work was problematic particularly in December 2000 and into the new year. The company had made its first effort to run the electronic program to deal with royalty collection and distribution and it had been a fiasco. The appellant missed several meetings in December and was off for a time after Christmas into the new year. Ms. Rioux was also off for a time over the holidays and when she returned the appellant was away. While the appellant’s holiday had been approved, her absence and unavailability to deal with the problems in her department contributed to Ms. Rioux’s frustration with her and the operational difficulties in the royalty department. The proposed solution to these problems - a division of the supervisory functions of the royalty department in the new year between the appellant and another employee - in turn, only contributed to the appellant’s feelings of inadequacy.
[26] Problems with punctuality and absences continued despite the fact that Mrs. Rioux had spoken to the appellant about these problems. While the appellant felt “picked on”, the trial judge concluded that management’s requests were reasonable and in conformity with the company’s policy manuals and Merritt’s memo to the entire staff a year earlier.
[27] The combination of what the company reasonably perceived as a decline in performance coupled with continued absences and late arrivals were the reason for an exchange of emails between Rioux and Basskin in April 2001 about a change of jobs for the appellant.
[28] What the appellant perceived as a plan on the part of management to force her to quit or enable them to fire her for cause, the trial judge found reflected only the company’s desire to redeploy her to a position where she could function (and which would not constitute constructive dismissal) as well as its ability to terminate her if she did not perform adequately. These goals the trial judge found were a legitimate reaction to what the employer saw as declining performance and increasing absenteeism.
[29] The trial judge also concluded that it was unlikely that the appellant’s symptoms were objectively apparent to the defendants to the extent that they were aware of any particular condition she suffered from, or any particular vulnerability on her part. Reasons for this included the fact that despite the appellant’s evidence that on the two days before her breakdown she came into work and simply stared at her computer, there are emails sent by her on those days which would indicate she was doing her work as usual. In addition, in mid-April in an email to other staff the appellant reported “…feeling great these days” and indeed to Rioux on April 12, 2001. “I’m not sick and I actually feel great and well.” Co-workers who knew and worked with the appellant did not notice any signs or symptoms of depression or illness in the appellant in the time leading up to May 4.
[30] The trial judge also found that despite her worsening depression, the appellant continued to work hard and put in long hours of overtime. She told her co-workers she was feeling well “effectively masking her symptoms from those around her, who noticed nothing particularly different about her.” Her co-workers and management were shocked when her doctor’s note arrived advising that she would be off work for a month without any indication of the nature of her illness.[^1]
[31] The trial judge concluded from the employer’s perspective all of the events including: the increasing inability of the appellant to get her work done on time; the appellant taking more time off to visit her doctor; her late arrivals to work; and her absences from work were reasonably linked to the denial of promotion and her almost immediate act of insubordination regarding the letter requested by Rioux, with the
resulting recording of her employer’s concerns in her personnel file. These actions on the employer’s part were found to be reasonable.
[32] The trial judge concluded at paragraph 376 of her reasons:
Looking at all the evidence objectively, there is no question Ms. Rioux and the other members of the management team were demanding of employees, particularly in relation to the significant changes going on at CMRRA. There is also no question that Ms. Amaral’s depression caused a deterioration in her ability to do her work properly and her ability to be punctual. This resulted in the downward spiral of events that culminated in the breakdown. Given my findings concerning what was apparent at CMRRA, I cannot conclude that the employer should have seen more, or treated Ms. Amaral differently.
and at paragraph 379:
I have already found that the defendants’ responses to Ms. Amaral’s declining performance and punctuality were proportionate and reasonable, as was placing a note in her personnel file.
and at paragraph 393:
I find the defendant’s actions nothing more than reasonable, if firm, responses of an employer to the objectively declining performance of an employee.
[33] These findings caused the trial judge to conclude that the defendants could not be held liable for the intentional infliction of mental suffering. The same findings would necessarily result in the conclusion that the defendants could not be liable for negligent infliction of mental suffering, assuming such a cause of action exists.
[34] The respondents were unaware of the appellant’s disability or mental condition as the trial judge found they did not know she was ill.
[35] The appellant’s claim cannot succeed nor can the derivative claims which are dependant on her claim.
[36] For these reasons, the appeal is dismissed.
[37] The parties have agreed that costs should be fixed in the sum of $40,000 inclusive of disbursements and GST.
[38] Accordingly costs in the sum of $40,000 inclusive of disbursements and GST are awarded to the respondents.
RELEASED: May 13, 2009 “EEG”
“J. MacFarland J.A.”
“I agree E. E. Gillese J.A.”
“I agree H. S. LaForme J.A.”
[^1]: The family had asked the doctor not to reveal the nature of the appellant’s illness.