Kingston Road Animal Hospital Professional Corporation v. Paulin, 2016 ONSC 5940

CITATION: Kingston Road Animal Hospital Professional Corporation v. Paulin, 2016 ONSC 5940

DIVISIONAL COURT FILE NO.: 659/15 DATE: 20161006

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

BETWEEN:

KINGSTON ROAD ANIMAL HOSPITAL PROFESSIONAL CORPORATION, JONATHAN MITELMAN and MORRIS SAMSON

Appellant

– and –

SAMANTHA PAULIN

Respondent

Leo Klug, for the Appellants

Samantha Paulin, In Person

HEARD at Toronto: June 23, 2016

Stewart J.

Nature of the Appeal

1The Appellants delivered a Notice of Appeal of the judgment of Deputy Judge DeLucia of the Small Claims Court dated November 20, 2015 which dismissed their claim for damages arising out of the toxic work environment alleged to have been created by the Respondent, Samantha Paulin. Kingston Road Animal Hospital and Dr. Jonathan Mitelman also appeal the judgment of the Deputy Judge which awarded Paulin $3,500.00 plus prejudgment interest for the intentional infliction of mental suffering upon her by Dr. Mitelman. It is the latter appeal only which is now being pursued.

2The Respondent Samantha Paulin takes the position that the appeal ought to be dismissed.

Jurisdiction

3An appeal lies to the Divisional Court from a final order of the Small Claims Court. Such appeal is to be heard by a single judge (see: s. 31 and s. 21(2)(b) of the Courts of Justice Act, R.S.O. 1990, c.C. 43).

Standard of Review

4The standard of review in an appeal of an order of a judge is set out in Housen v. Niklaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. On questions of law, the standard is correctness. On questions of fact, the standard is palpable and overriding error. On questions of mixed fact and law, there is a spectrum. However, with respect to the application of the correct legal principles to the evidence, the standard is palpable and overriding error.

Background

5Kingston Road is a licensed veterinary hospital and operates 7 days a week, 24 hours a day.

6In September 2006, Ms. Paulin was hired as a veterinarian assistant at Kingston Road. She progressed to the position of veterinarian technician.

7On February 27, 2013, her employment was terminated on February 27, 2013. Paulin was dismissed.

8In May, 2014, Kingston Road commenced an action alleging that Paulin created a toxic work environment and had caused it to incur investigative costs.

9In June 2014, Paulin defended Kingston Road’s claim and advanced her own claim for infliction of mental suffering.

10Following five days of trial, the trial judge dismissed Kingston Road’s claim. He allowed Paulin’s claim and awarded her $3500.00 for damages for intentional infliction of mental suffering caused to her by Dr. Mitelman and dismissed the claim against Dr. Samson.

Trial Judge’s Decision

11In comprehensive reasons for decision, the trial judge made a series of findings of fact as follows:

(a) “The plaintiff has identified in her evidence certain events during her employment that she claims supports her claim for damages of intentional infliction of mental suffering, namely Ms. Paulin maintains that the plaintiff’s commencement of the plaintiff’s claim on May 14, 2014, some 15 months after her termination for cause was deliberate and pre-emptive and malicious, and an attack on her and at least with a view to diminish Ms. Paulin’s credibility as it relates to the College of Veterinarian investigation as against Kingston Road. I find that certain events as described by Ms. Paulin did occur at Kingston Road Animal Hospital. And further I find that they involved Dr. John Mitelman. I further state that where there was a difference in the evidence and the versions of events as described by Ms. Paulin versus Dr. Mitelman, I accept Ms. Paulin’s evidence as being reliable and trustworthy. And, in particular, I accept that the following occurred during Ms. Paulin’s term of employment at Kingston Road Animal Hospital. That on February 12th, 2010, during a surgical procedure on a dog, while Dr. Mitelman’s hand was inside the patient that he did state to Ms. Paulin, “I wonder if this is what it feels like to fist someone”. Dr. Mitelman denies it but it is noted that present with Ms. Paulin in the surgery was the defendant’s first witness, Dr. Brittany Kyle who corroborated the statement regarding the fisting and the sexual inappropriateness and unprofessionalism. Dr. Kyle stated that she felt uncomfortable. I find that on another occasion, as Ms. Paulin states and I accept that Dr. Mitelman sent to her a text message which contained a photo of a dog’s penis. Dr. Mitelman states it was intended for Reception and the attachment was to be attached to the patient’s file.”

(b) “Ms. Paulin states that her belief and her evidence is that she found that Dr. Mitelman’s sending of the photo of the dog’s penis was intentional and that she became depressed, devastated and upset over these actions. I find and accept that Ms. Paulin complained to Dr. Morris Samson, another principal of the Kingston Road Animal Hospital and a named defendant in the defendant’s claim. And she complained regarding Dr. Mitelman’s conduct. And she states that it was to no avail and that Dr. Samson was indifferent and took no action”.

(c) “I also accept Ms. Paulin’s evidence that Dr. Mitelman placed Ms. Paulin’s bra on his head and I accept the evidence of the defendant’s witness, Ms. Tamara Davidson, and find that Dr. Mitelman made this inappropriate and insensitive comment about the size of Ms. Paulin’s breasts. There is also the evidence of another witness, Alex Sobey, which I accept, that supports this incident”.

(d) “I accept Ms. Paulin’s evidence that the aforementioned episodes made her uncomfortable, anxious and depressed. Ms. Paulin stated she was upset and was emotional. She stated that she didn’t want to go to work. She stated that she would spend the first half hour of her day in the washroom. She stated that she was confused and that she didn’t know how to handle the sexual inappropriateness and the sexual rudeness of Dr. Mitelman and she was further upset regarding the fact that Dr. Morris Samson provided her with no support regarding these allegations and complainants. I find that a fully informed reasonable person after a careful review of this evidence would conclude that Dr. John Mitelman’s conduct was flagrant and outrageous. That he belittled, humiliated and demeaned Ms. Paulin’s dignity and self-worth often in the presence of co-workers. That Dr. Mitelman intended to produce the harm that eventually occurred including anxiety and mental suffering. I find that Ms. Paulin suffered at the hand of Dr. Mitelman. I find Dr. Mitelman and Kingston Road Animal Hospital jointly and severally liable of the tort of intentional infliction of mental suffering. And in this regard, regarding this tort, I award damages to Ms. Paulin in the amount of $3,500. As to Dr. Samson, the third named defendant in the defendant’s claim. I dismiss the claim as against him”.

Analysis

12The Appellants argue that there was no evidence before the trial judge that would permit a finding that Paulin had been deliberately targeted by them, or from which it can be concluded that they intentionally inflicted emotional or mental suffering upon her.

13It is evident in the reasons for the trial judge’s decision that Paulin’s evidence on these issues was believed and accepted, and the evidence of Dr. Mitelman and that on behalf of the Appellants was not.

14The trial judge also referred to the corroborative evidence of other witnesses. The case turned largely on an assessment of credibility of the parties and these witnesses. This assessment was made by the trial judge in Paulin’s favour.

15It was open to the trial judge, who had the distinct advantage of seeing and hearing the witnesses, to arrive at these conclusions. There was ample evidence adduced to support them. In particular, the evidence supports the drawing of reasonable inferences that Paulin was unfairly targeted by the Appellants as she alleged, and that the emotional suffering she sustained was intended by them.

16In my view, a review of the trial record reveals no error of law, or palpable and overriding error of fact or mixed law and fact, that would justify appellate intervention.

Conclusion

17For these reasons, the appeal is dismissed.

Costs

18Paulin advised that her factum had been prepared with legal assistance, although she represented herself at the hearing of the appeal. In the circumstances, I would award her costs of the appeal in the amount of $500.00, payable by the Appellants within 60 days.

___________________________ Stewart J.