DIVISIONAL COURT FILE NO.: 017/15 DATE: 20151027
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
ERIN HODGINS Plaintiff/Respondent
– and –
AMLAP CORP. Defendant/Appellant
Adam Lefler, for the Respondent Justin P. Baichoo, for the Appellant
HEARD at Toronto: October 1, 2015
M.A. SANDERSON J.
REASONS FOR DECISION
[1] This is an appeal by the Defendant Amlap Corp. (the “Appellant” or “Amlap”) from the judgment of Deputy Judge De Lucia dated December 18, 2014, awarding the Respondent/Plaintiff Erin Hodgins (“Hodgins”) $1,250, or two weeks’ salary in constructive dismissal damages, $3,500 for harassment and acting in bad faith causing mental distress, and $1,500 for costs.
Facts
[2] Hodgins was hired by Amlap in December 2012 as a project coordinator and estimator with an annual salary of $32,000. She reported to the lead estimator Domenic De Palma.
[3] Hodgins claimed that because Amlap made her continued employment intolerable, she resigned on November 8, 2013. She claimed to have been constructively dismissed.
[4] There was evidence that Hodgins never received any formal performance reviews. However, notes were posted in Amlap’s office, criticizing her performance. She gave evidence that she was verbally harassed and was frequently brought to tears.
[5] The trial judge’s reasons included the following:
I find that a reasonable period of notice should be two weeks. Accordingly, at $625 a week times two, the total compensation for the constructive dismissal would be $1,250 as damages.
As to the relief sought by the plaintiff regarding workplace harassment, in conjunction with the constructive dismissal, I find that Jamie Rocci’s notes significantly establish a degree of harassment, intimidation, anxiety and discomfort that, in my view, points unequivocally to the plaintiff’s emotional distress. These notes alone at Exhibit 1, tab 5, constitute psychological harassment and bullying, and support the finding that the defendant’s workplace environment was intolerable to a reasonable person.
Grounds for the Appeal
Issue One Quantum of the Award for Constructive Dismissal
[6] There is no appeal from the trial judge’s conclusion that Hodgins was constructively dismissed.
[7] The appeal with respect to constructive dismissal is limited to the quantum of constructive dismissal damages.
[8] Deputy Judge De Lucia found that the Respondent had resigned as of November 8, 2013, and that “before her resignation,” the Respondent had been constructively dismissed. However, his oral reasons stated that the Respondent was employed by Amlap from “on or about December 31, 2013 to November 15, 2013”. Deputy Judge De Lucia found [at page 190] that the Respondent resigned “on November the 8th, 2013.” and [at page 199] that an award of prejudgment interest is to be calculated from November 8, 2013 to the date of his decision, December 18, 2014.
[9] Counsel for the Appellant submitted that since Hodgins worked and was paid for the period from November 8 to November 15, if the award were allowed to stand, she would have received double recovery during that time frame.
[10] It is not disputed that Hodgins tendered her Letter of Resignation on November 8, 2013. The Respondent worked the first week of her notice period, from November 11, 2013 to November 15, 2013, and was fully compensated for her services during that period. She was not compensated for the second week.
Conclusion on Issue 1
[11] The trial judge erred in ordering constructive dismissal damages of $1,250. They should have been in the amount of $625.
Issue 2-Damages Awarded for Mental Distress
[12] The trial judge awarded damages for harassment in the workplace causing mental distress of $3,500.
[13] Counsel for Amlap submitted that the trial judge erred in finding that Hodgins could recover mental distress damage, given that her pleading did not refer to a claim for aggravated damages based on mental distress and given that she led no documentary evidence at trial to support her claim for mental distress. Amlap was “essentially ambushed” by the claim for mental distress.
[14] Counsel for Hodgins submitted that Deputy Judge De Lucia correctly held that the Respondent was entitled to damages for mental distress from workplace harassment.
[15] Counsel for the Hodgins submitted that all material facts were pleaded to allow Amlap to know the case against it. She claimed damages for harassment in the workplace that forced her to resign, wrongful termination, that she was continuously reprimanded, verbally abused and embarrassed.
[16] During his opening, counsel for Hodgins submitted that she experienced harassment and discrimination that caused her to become “mentally broken down”.
[17] Harassment was mentioned throughout. Evidence of harassment was tendered. Amlap had every opportunity to respond to the pleading, cross-examine the Respondent and to proffer its own evidence.
[18] Counsel for Hodgins submitted that Deputy Judge De Lucia awarded the damages that he did because he found “that there was harassment and the defendant caused her mental distress.” In Dora Cooke v. HTS Engineering the facts were similar to the facts in the case at bar. The Court ruled that an employee had been constructively dismissed based on intolerable workplace conditions. Like the Respondent, the employee had been brought to tears at work, and had suffered from depression, anxiety and mental distress. The employee had been able to obtain a new employment position shortly after her constructive dismissal. The Court wrote:
The workplace is most often an extremely important aspect of a person’s life. Aside from its obvious role in providing a source of funds with which to live, it also provides a sense of value and self-worth. Those senses suffer enough when performance issues are brought to an employee’s intention in a calm and rational manner accompanied by assistance to resolve the issues. When performance issues arise and are accompanied by yelling, abusive insults and biting criticism, those sense senses suffer far more than need be, resulting in increased mental distress and illness.
[19] In Cooke, the Court considered the oral evidence of the plaintiff and other employees, assessed their credibility and awarded compensatory damages for the plaintiff’s metal distress caused by harassment in the workplace.
[20] In Middleton v. Municipality of Highland East et al, 2013 ONSC 2027, the Court awarded mental distress damages in a wrongful dismissal action based on the evidence of the plaintiff and various witnesses.
[21] A Small Claims Court judge has a duty on being presented with facts that fall broadly within the umbrella of circumstances described in the Statement of Claim, to determine whether those facts continue a cause of action known to the law, regardless of whether it can be said that the claimant, as a matter of pleading, has asserted that or another particular cause of action. Rosic v. Mayer [2005] OJ no 3539, Sable Offshore Energy Inc. v. Bingley [2003] NSJ no 33
[22] On the ambush issue, counsel for Amlap cited Garcia v. 1162540 Ontario Inc. (c.o.b. Venice Fitness), 2013 ONSC 6574, where Wilton-Siegel J. set aside a Deputy Judge’s award because relief given had been raised for the first time in the party’s closing submissions: “if the plaintiff wished to assert a claim for joint liability or personal liability on the part of [the defendant], he had an obligation to bring such claim to [the defendant]’s attention at the opening of the trial.”
[23] Counsel for the Respondent Plaintiff submitted that Garcia is distinguishable because the individual defendant was denied any opportunity to produce evidence or make submissions on a liability issue raised for the first time in closing argument. Here there was an opportunity to adduce evidence and to make submissions on the point.
[24] Counsel for Amlap further submitted that Deputy Judge De Lucia erred in awarding an arbitrary award of damages for mental distress, an amount that had “no connection to any alleged losses flowing from her termination.” The Respondent failed to adduce any objective evidence on which the Court could assess the quantum of damages for workplace harassment.
[25] He submitted that the few statements Hodgins made in evidence about her mental state were entirely unsupported by other evidence. Hodgins demonstrated a propensity to give misleading testimony under oath. Deputy Judge De Lucia described her evidence in respect of the claims for unpaid wages, vacation pay and bonuses as “fraught with conflicting and opposing evidence that was given under oath.” Absent other evidence to support her claim, Deputy Judge De Lucia erred awarding her damages for mental distress.
Conclusion on Ground 2
[26] In this case, facts were sufficiently pleaded for Amlap to know that the Plaintiff was claiming damages for treating her poorly and for harassing her. The Plaintiff specifically pleaded being continuously reprimanded, verbally abused and embarrassed in the workplace.
[27] The Small Claims Court Judge was entitled to liberally interpret the pleadings and to conclude that Hodgins was seeking damages for harassment.
[28] Deputy Judge De Lucia was entitled to rely on the following evidence and to find conduct that caused Hodgins to suffer from mental distress; evidence of verbal abuse by various employees of Amlap regarding her quality of work and work habits; notes hung up on a public board in Amlap’s offices by Jamie Rocci; evidence that the Respondent had retreated to her vehicle to cry after an incident of verbal abuse.
[29] Deputy Judge De Lucia made no palpable and overriding error in finding the facts. Those facts provided an adequate legal basis for his award for mental distress/harassment.
Issue 3
[30] Counsel for Amlap also submitted that since Hodgins was unsuccessful on 7 of her 8 claims, Amlap should have been entitled to costs. Eastern Power v. Ontario Electricity Financial Corporation 2012 ONCA 366 at paras 16-17.
[31] He submitted that the Plaintiff’s unsuccessful claims significantly increased the duration of the trial and the preparation required. Although, the Plaintiff claimed $10,000 for wrongful dismissal, she was awarded only $1,250 (and should have been awarded only $625).
[32] Costs should have reflected her failure to plead her claim for mental distress.
[33] Counsel for the Plaintiff, Hodgins submitted that as the successful party, she was entitled to costs. The amount of costs awarded was reasonable.
Conclusion on Issue 3
[34] Costs awards are discretionary orders.
[35] In my view, the amount that Deputy Judge De Lucia awarded for costs in all the circumstances here was reasonable. There is no sufficient basis to interfere with the exercise of his discretion.
Summary of Conclusions
[36] I am of the view that this appeal should be dismissed in all respects but one. The damages awarded for constructive dismissal should be revised to $625.
Disposition
[37] The amount awarded for constructive dismissal is revised to $625.
[38] In all other respects the appeal is dismissed.
[39] Given the divided success on the appeal, there will be no order of costs in connection with the appeal.
___________________________ M.A. SANDERSON J.
Released: October 27, 2015
DIVISIONAL COURT FILE NO.: 017/15
DATE: 20151027
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ERIN HODGINS
Plaintiff/Respondent
– and –
AMLAP CORP.
Defendant/Appellant
REASONS FOR DECISION
M.A. SANDERSON J.
Released: October 27, 2015