COURT OF APPEAL FOR ONTARIO

2016 ONCA 520

DATE: 20160630

DOCKET: C60903

Doherty, Epstein and Miller JJ.A.

BETWEEN

Vicky Karen Strudwick

Plaintiff (Appellant/

Respondent by way of cross-appeal))

and

Applied Consumer & Clinical Evaluations Inc.

Defendant (Respondent/

Appellant by way of cross-appeal)

Christopher Du Vernet and Carlin McGoogan, for the appellant

Ernest D. Coetzee, for the respondent

Heard: February 3, 2016

On appeal from the judgment of Justice Grant R. Dow of the Superior Court of Justice, dated August 7, 2015.

Epstein J.A.:

[1] This wrongful dismissal action arose out of a long-term employment relationship between the appellant, Vicky Strudwick, and the respondent, Applied Consumer and Clinical Evaluations Inc., a business that recruits people to participate in focus groups. Ms. Strudwick worked for Applied Consumer for over 15 years, initially in data entry and later instructing recruiting staff. At the time of her dismissal in May 2011, Ms. Strudwick was earning $12.85 per hour.

[2] In October 2010, Ms. Strudwick suddenly became completely deaf. While the cause is uncertain, her doctors believe it was a virus. At that time, Raymond Berta, the owner and manager of Applied Consumer, was away from his business dealing with a medical problem. The general manager of Applied Consumer, Andrew Hoffman, had taken over the operations of the company in Mr. Berta’s absence. Almost immediately after Ms. Strudwick became deaf, Mr. Hoffman, together with Ms. Strudwick’s immediate supervisor, Liz Camilleri, commenced a campaign of abuse against Ms. Strudwick designed to force her resignation. This abuse will be described in more detail later in these reasons. In summary, in addition to publically belittling, harassing and isolating Ms. Strudwick in ways relating to her disability, Applied Consumer not only denied Ms. Strudwick any accommodation of her disability but also took specific steps to increase the difficulties she faced as a result of her not being able to hear. The culmination of this abuse came on May 27, 2011 when Mr. Hoffman fired Ms. Strudwick for a “stunt [she] had [allegedly] pulled” at a company event.

[3] Ms. Strudwick sued Applied Consumer for damages for wrongful dismissal and related claims arising out of the abuse. Applied Consumer did not defend the action and was noted in default. After an unsuccessful attempt to have the noting in default set aside, a hearing took place to assess damages. The motion judge considered Ms. Strudwick’s uncontradicted evidence and submissions of counsel for both parties[^1] and granted judgment in favour of Ms. Strudwick in the aggregate amount of $113,782.79, including pre-judgment interest, plus $40,000 in costs.

[4] Ms. Strudwick appeals the damages assessment on the basis that, given Applied Consumer’s extraordinarily egregious conduct, the motion judge erred by assessing damages that were simply too low. She also seeks leave to appeal the motion judge’s costs award. Applied Consumer does not challenge the motion judge’s damage awards. However, in its cross-appeal, it seeks leave to appeal costs. If leave is granted, it asks this court to reduce the costs award to $20,000.

[5] I would allow the appeal and dismiss the cross-appeal. For the reasons that follow, I have concluded that, in certain respects, the trial judge erred in his award of damages. I would increase the total damages to $246,049.92. In terms of the cross-appeal, I am of the view that there is no reason to disturb the trial judge’s costs order. I would therefore not grant leave to appeal costs to either party.

Background in Brief

(1) The Abuse

[6] There were two main aspects of abuse – Applied Consumer’s general treatment of Ms. Strudwick and its conduct in relation to accommodating her disability.

[7] With respect to the cruel treatment, the evidence demonstrated, and the motion judge found, that Mr. Hoffman and Ms. Camilleri tormented Ms. Strudwick for the specific purpose of making the work environment intolerable. For example, Ms. Camilleri would purposely give Ms. Strudwick instructions in a manner that prevented her from lip reading. Then, Ms. Camilleri would call Ms. Strudwick “stupid” for not understanding the instructions. Ms. Camilleri would chastise Ms. Strudwick for not answering the telephone. Mr. Hoffman demanded that Ms. Strudwick produce a doctor’s opinion as to the precise cause of her hearing loss. Since, as previously mentioned, the doctors were unable to identify the cause of Ms. Strudwick’s hearing loss and so instead she provided Mr. Hoffman with hearing test results. In response, Ms. Camilleri accused Ms. Strudwick of being “too cheap” to produce a doctor’s note. Ms. Camilleri suggested to Ms. Strudwick that she “just quit” and “go on disability”.

[8] The motion judge found that this conduct was intended to force Ms. Strudwick to resign.

[9] In terms of accommodation, the trial judge provided a description of Mr. Hoffman’s abusive conduct toward Ms. Strudwick concerning the refusal of even the most basic accommodation of her disability. Details of this refusal to accommodate include denying Ms. Strudwick:

• the assistance of the Canadian Hearing Society in coming to the office and performing an accommodation assessment;

• access to important information in print;

• permission to bring an assistance dog to the workplace (it is of note that Mr. Berta had regularly brought his dog into the office);

• permission to use a special voice carry over telephone at her own expense;

• the benefit of a visual fire alarm that she also offered to pay for or her request to assign a person to notify her if the fire alarm was activated;

• her request to turn her desk around so that she could see people as they approached; and

• her request to use a vibrating or light-activated pager given to her by the Canadian Hearing Society.

[10] Mr. Hoffman took the position that these accommodations were “unnecessary”.

[11] Applied Consumer’s offensive response to its obligation to accommodate Ms. Strudwick’s disability went further. As previously mentioned, in addition to denying accommodation, Mr. Hoffman and Ms. Camilleri took specific steps clearly designed to exacerbate the challenges Ms. Strudwick faced as a result of her hearing loss. These steps included advising co-workers not to talk to her and instructing other office workers to telephone Ms. Strudwick so she would miss the call thereby providing Ms. Camilleri with yet another opportunity to ridicule her.

[12] In summary, in the lead-up to Ms. Strudwick’s termination, she was belittled, isolated, humiliated and made to suffer the effects of her disability to the greatest extent possible. This conduct was deliberate, malicious and designed to force Ms. Strudwick to quit a job she had held for almost 16 years.

(2) The Termination

[13] The employees of Applied Consumer had formed a Toastmasters Club. This voluntary group met periodically at the workplace. The company encouraged participation in the club. Ms. Strudwick was one of ten employees of Applied Consumer who attended the Toastmasters’ meeting on May 26, 2011. She helped select the topics to be addressed but did not give a presentation.

[14] The next day Mr. Hoffman, in front of 13 other employees, confronted Ms. Strudwick about the Toastmasters’ meeting. He berated her, calling her a “goddamned fool”. Then, in the presence of Ms. Camilleri and another employee, Mr. Hoffman terminated Ms. Strudwick’s employment for insubordination and wilful misconduct, referring to a “stunt” at the Toastmasters’ event.

[15] Mr. Hoffman immediately provided Ms. Strudwick with a document confirming her termination, a cheque for three months’ pay and a form of release. When she did not sign the release, Mr. Hoffman took the cheque back. At that point, Ms. Strudwick was escorted to her desk to collect her belongings and marched out of the building in front of her co-workers.

(3) The Consequences

[16] Ms. Strudwick did not receive her outstanding pay until Labour Community Services of Peel Region intervened. Applied Consumer tendered a document to Employment Services of Canada indicating Ms. Strudwick had been fired for insubordination and wilful misconduct. This delayed Ms. Strudwick’s ability to secure unemployment insurance payments.

[17] Ms. Strudwick’s efforts to mitigate her damages were largely unsuccessful. In September 2014, she obtained part-time employment working sporadically for $60 per day.

[18] A psychiatrist diagnosed Ms. Strudwick as having an adjustment disorder with mixed anxiety and depressed mood as a result of the manner in which Applied Consumer treated her. To address these afflictions, Ms. Strudwick has been forced to pay for extensive cognitive behavioural therapy.

(4) The Legal Proceedings

[19] Ms. Strudwick commenced this action by statement of claim issued in January 2012. In her pleading she claimed specific amounts under various categories: damages for wrongful dismissal; restitution under s. 46.1 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19; general damages for breach of good faith; punitive damages; and exemplary damages. The total amount claimed was $240,000 plus an unquantified request for damages associated with her loss of benefits during the notice period.

[20] Applied Consumer did not deliver a statement of defence and was noted in default. The company moved to set aside the noting in default. In his March 10, 2014 reasons for dismissing the motion, Spence J. of the Superior Court of Justice described Applied Consumer’s excuse for not defending as “clutching at trivialities” and concluded that Applied Consumer’s conduct revealed a litigant “who [had] no real interest in going to trial but simply [wished] to delay for as long as possible”. This court dismissed Applied Consumer’s appeal from Spence J.’s decision, saying that the motion judge’s characterization of the company’s conduct spoke volumes about its overall attitude toward the defence. Applied Consumer sought leave to appeal this court’s decision to the Supreme Court. Leave was denied.

[21] Prior to this appeal, as a result of the motion judge’s judgment of almost $114,000 and the $40,000 cost award, in addition to the cost orders associated with Applied Consumer’s failed efforts to cure its default in defending the action, the company owed Ms. Strudwick close to $180,000, not including the costs ultimately ordered by the Supreme Court.

[22] After the appeal and cross-appeal were launched, Ms. Strudwick, then on social assistance, moved to lift the automatic stay of the enforcement of the judgment. Applied Consumer, asserting financial difficulties, argued that it be allowed to pay the amount it owed, in instalments.

[23] In his endorsement lifting the stay, Miller J.A. made the following observations. There was no evidence in support of Applied Consumer’s assertion of financial hardship. Applied Consumer had not “made a single voluntary payment” to Ms. Strudwick and she had therefore been forced to execute on the various cost orders in her favour. And, the motion to lift the stay was necessary only because of the “unreasonable position” taken by Applied Consumer.

THE APPEAL ON DAMAGES

ISSUES

[24] The primary issue in the appeal is whether the trial judge erred in his assessment of damages within the various categories set out above. However, a preliminary issue must be addressed and that is the fact that, on appeal, Ms. Strudwick is seeking damages significantly in excess of the amount claimed in her statement of claim. I will deal with this preliminary issue, first.

ANALYSIS

(1) Does the Statement of Claim limit the Award of Damages?

[25] On appeal, Ms. Strudwick seeks damages totalling $1,019,384.80. Applied Consumer contends that the aggregate amount is limited by the amount claimed in the statement of claim of $240,000 plus an amount to compensate Ms. Strudwick for the loss of collateral benefits. In response to a question from the panel, counsel for Applied Consumer acknowledged that his client would suffer no prejudice if any award this court may order under a particular head of damage exceeded the amount claimed under that head, provided the overall damages awarded did not exceed the total amount claimed in the statement of claim. Counsel left any such adjustment in the amount ordered under a particular head of damage “in the court’s hands”.

The Governing Principles

[26] In Burkhardt v. Beder, 1962 18 (SCC), [1963] S.C.R. 86, at p. 91, the Supreme Court referred to r. 147 of the Ontario Rules of Practice, which it characterized as requiring “that when damages are claimed the amount shall be named in the statement of claim”. The court then stated that “the authorities are clear that judgment cannot be given for an amount greater than that claimed unless an amendment is allowed”: p. 91.

[27] Rule 147 of The Rules of Practice and Procedure of the Supreme Court of Ontario in Civil Matters, R.R.O., 1960, Reg. 396, stated “Every statement of claim and counter-claim shall state specifically the relief claimed, either simply or in the alternative, and may also ask for general relief, and, when damages are claimed, the amount shall be named”.[^2] This is similar to the current r. 25.06(9) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, which states:

(9) Where a pleading contains a claim for relief, the nature of the relief claimed shall be specified and, where damages are claimed,

(a) the amount claimed for each claimant in respect of each claim shall be stated; and

(b) the amounts and particulars of special damages need only be pleaded to the extent that they are known at the date of the pleading, but notice of any further amounts and particulars shall be delivered forthwith after they become known and, in any event, not less than ten days before trial.

[28] In my view, the similarity of the two rules supports the application of the rule in Burkhardt in the context of the current rule and therefore in this case.

[29] This is also in keeping with the Supreme Court’s analysis in Whiten v. Pilot Insurance, 2002 SCC 18, [2002] 1 S.C.R. 595. There, in considering whether or not punitive damages needed to be specifically pleaded, Binnie J. stated, at para. 87, “One of the purposes of a statement of claim is to alert the defendant to the case it has to meet, and if at the end of the day the defendant is surprised by an award against it that is a multiple of what it thought was the amount in issue, there is an obvious unfairness.”

[30] This principle is reinforced by the number of cases in which parties awarded damages in amounts greater than requested in their statement of claim have sought to amend the pleadings following the award. For example, in B. (M.) v. 2014052 Ontario Ltd., 2012 ONCA 135, 109 O.R. (3d) 351, at paras. 71-74, the jury awarded a general damages award of $300,000 to the respondent, who had only claimed $250,000. On appeal, the appellant argued for a reduction of the award to $250,000, in line with the statement of claim. At the respondent’s request, the court granted leave to amend the pleadings under r. 26.01 to conform with the jury’s general damages award.

The Principles Applied

[31] I note Ms. Strudwick at no point prior to the hearing of this appeal sought to amend her claim to increase the amount of damages requested. This issue was addressed in oral argument by both counsel. Counsel for Applied Consumer advised the court that during a previous hearing below, counsel for Ms. Strudwick informed the court that he did not intend to seek to amend the statement of claim to increase the damages as such a move would re-open pleadings, giving Applied Consumer to defend the action. Counsel for Ms. Strudwick then indicated to this court that he was moving to amend the pleadings. However, no motion record was ever filed with this court, nor was any notice given to Applied Consumer of any such motion. The matter went no further.

[32] In my view, in these circumstances, this court does not have jurisdiction to award damages that exceed the amount claimed in the statement of claim; namely, $240,000 plus the unquantified amount to compensate Ms. Strudwick for the benefits she lost during the period of reasonable notice.

(2) Did the Motion Judge Err in his Award of Damages?

(a) Standard of Review

[33] In Woelk v. Halvorson, 1980 17 (SCC), [1980] 2 S.C.R. 430, at p. 435, the Supreme Court held that an appellate court cannot interfere with a damages award simply because it would have come to a different conclusion. Rather, as explained in Naylor Group Inc. v. Ellis-Don Construction Ltd., 2001 SCC 58, [2001] 2 S.C.R. 943, at para. 80, interference is only justified where the trial judge: (1) made an error of principle or law; (2) misapprehended the evidence; (3) erred in finding there to be evidence on which to base a conclusion; (4) failed to consider relevant factors, or considered irrelevant factors; or (5) made “a palpably incorrect” or “wholly erroneous” assessment of the damages.

[34] Ms. Strudwick challenges the damages awarded under each category for different reasons. In the following analysis I will set out her position in respect of each award. Applied Consumer’s position, however, is the same throughout and so I will set it out here. In short, Applied Consumer submits that deference is owed to the assessment of the trial judge, whose reasons display no error.

(b) Damages for Wrongful Dismissal

[35] The motion judge found, at para. 21, that the circumstances placed Ms. Strudwick at the “highest level for the number of months of notice”. He concluded that the notice period should be 20 months. Based on the manner of dismissal, the trial judge added four months for what has come to be known as the “Wallace factor” (see Wallace v. United Grain Growers Ltd., 1997 332 (SCC), [1997] 3 S.C.R. 701).

[36] The trial judge calculated damages for wrongful dismissal based on 24 months’ salary, using a two percent cost of living increase and a tax gross up, to be $49,907.05.

[37] Ms. Strudwick submits that the trial judge erred by imposing an upper limit to the length of the notice period. She argues that, given her age and disability, her dismissal sentenced her to chronic unemployment. Ms. Strudwick submits that applying the Bardal[^3] factors to her wrongful dismissal and taking into account the manner of dismissal and the “scorched earth” litigation strategy, she should receive pay in lieu of notice to age 65 – or for 125 months. With inflation and gross up, this would amount to damages representing pay in lieu of notice of $358,450.80.

The Governing Principles

[38] In Keays v. Honda Canada Inc., 2008 SCC 39, [2008] 2 S.C.R. 362, at para. 28, the Supreme Court reinforced what have come to be known as the Bardal factors:

In determining what constitutes reasonable notice of termination, the courts have generally applied the principles articulated by McRuer C.J.H.C. in Bardal, at p. 145:

There can be no catalogue laid down as to what is reasonable notice in particular classes of cases. The reasonableness of the notice must be decided with reference to each particular case, having regard to the character of the employment, the length of service of the servant, the age of the servant and the availability of similar employment, having regard to the experience, training and qualification of the servant.

[39] In Keays, the court clarified that in determining the appropriate notice period the court’s concern is the particular circumstances of the individual – no one Bardal factor should be given disproportionate weight: Keays, at paras. 30, 32.

[40] This fact-specific and contextual approach to the period of reasonable notice, limited by a range of reasonableness, is consistent with the manner in which this court has reviewed wrongful dismissal awards. As Laskin J.A. observed in Minott v. O’Shanter Development Co. (1999), 1999 3686 (ON CA), 42 O.R. (3d) 321 (C.A.), at pp. 343-44:

Determining the period of reasonable notice is an art not a science. In each case trial judges must weigh and balance a catalogue of relevant factors. No two cases are identical; and, ordinarily, there is no one "right" figure for reasonable notice. Instead, most cases yield a range of reasonableness. Therefore, a trial judge's determination of the period of reasonable notice is entitled to deference from an appellate court. An appeal court is not justified in interfering unless the figure arrived at by the trial judge is outside an acceptable range or unless, in arriving at the figure, the trial judge erred in principle or made an unreasonable finding of fact. If the trial judge erred in principle, an appellate court may substitute its own figure. But it should do so sparingly if the trial judge's award is within an acceptable range despite the error in principle.

[41] This court has rejected the argument that there should be an upper limit on notice periods in wrongful dismissal cases. In Di Tomaso v. Crown Metal Packaging Canada LP, 2011 ONCA 469, 337 D.L.R. (4th) 679, at para. 23, MacPherson J.A. declined to set a cap for the quantum of reasonable notice for clerical and unskilled employees. This court has noted, however, that courts should strive to ensure that notice periods are consistent with the case law: Kotecha v. Affinia Canada ULC, 2014 ONCA 411, at para. 8.

[42] Although it is clear that reasonable notice of employment termination must be determined on a case-specific basis and there is no absolute upper limit on what constitutes reasonable notice, generally only exceptional circumstances will support a base notice period in excess of 24 months: Lowndes v. Summit Ford Sales Ltd. (2006), 2006 14 (ON CA), 206 O.A.C. 55 (C.A.), at para. 11; Keenan v. Canac Kitchens Ltd., 2016 ONCA 79, at paras. 30-32.

The Principles Applied

[43] In my view, the motion judge did not err in his application of the governing legal principles to the facts of this case. He correctly noted that the appropriate range had no limit or cap. He was aware that Ms. Strudwick had worked for Applied Consumer for 15 years and 8 months, and that she was 56 years old at the time of termination. He observed that the distinction between greater notice for highly skilled positions and less notice for clerical or unskilled work was “largely irrelevant”. And he knew that the appellant had unsuccessfully sought full-time employment for four years. In determining a base notice period of 20 months, I see no error in principle. Nor do I view the amount ultimately awarded as being outside an acceptable range.

[44] In addition, I do not agree with Ms. Strudwick’s argument that, in the circumstances, Ms. Strudwick is entitled to pay and related benefits until she turns 65 and retires.

[45] The purpose of an award of damages for wrongful dismissal is to give the employee what she needs to support herself until she finds a new job. That risk has to be understood as meaning what she reasonably needs in the circumstances. Absent a fixed term contract, the risk of an employer’s having to pay an amount calculated with respect to that purpose is limited by the fact that, both generally and in this case, an employer does not guarantee employment to retirement.

[46] A contracting party assumes certain risks in making a contract. These risks are generally fixed when the contract is made. In the case of an employment contract, the risk the employer assumes is that, if an employee is dismissed without notice or cause, the employer must pay what it would have had to pay the employee during the period of notice. In an employment situation, the period may change as time goes by so that the actual size of the payment the employer must make cannot be known until the event occurs. Even then, the initial assumption of risk does not change: only the calculation of the consequences of the risk changes over time.

[47] This argument is the understanding behind Hadley v. Baxendale (1854), 156 E.R. 145. The promisor is liable for the ordinary losses the promisor could have foreseen. Beyond that point, the promisor is not liable. This approach to damages governs damages for wrongful dismissal.[^4]

[48] Applied Consumer accepted the risk that, if it dismissed Ms. Strudwick without notice or cause, it would have to pay her an amount fixed in accordance with the Bardal factors relevant at the time of dismissal. It did not accept, and cannot be held to have accepted, the risk that, in dismissing a 56-year-old woman, it would have to pay her until she retired. Put another way, it cannot be the law that Applied Consumer could not have dismissed Ms. Strudwick with notice but had to employ her until she reached the age of 65.

[49] I should indicate that I am of the view that the trial judge did err in awarding “Wallace” damages by arbitrarily extending the notice period by four months, as opposed to determining an award that reflects the actual damages as required by Keays. However, Applied Consumer has not cross-appealed damages, so there is no challenge to this additional four months of reasonable notice. I will return to the impact of this amount later in these reasons where I deal with aggravated damages.

(c) Cost of Replacing Benefits that would have been provided during the Notice Period

[50] Ms. Strudwick claimed additional damages for wrongful dismissal based on the loss of collateral benefits associated with her employment. The motion judge noted that the evidence she tendered in support of this claim indicated an annual cost of replacement of $3,024.96. According to the motion judge, based on a 24-month notice period, Ms. Strudwick was entitled to an additional $6,049.92.

[51] Ms. Strudwick does not challenge this part of the motion judge’s damage award – either the number of months or the manner of calculation. Applied Consumer has not cross-appealed the quantum. I therefore see no reason to interfere with the amount awarded under this heading.

(d) Code Violations

[52] The motion judge awarded Ms. Strudwick damages under s. 46.1 of the Code. Based on various cases cited by Ms. Strudwick’s counsel, the motion judge identified a range of awards between $2,000 and $30,000. Referring to Applied Consumer’s “abject failure to consider or accommodate [Ms. Strudwick] despite repeated, reasonable and varied requests” and their being no evidence to contradict Applied Consumer’s “unconscionable conduct”, the motion judge assessed damages under this category at $20,000.

[53] Ms. Strudwick argues that the motion judge’s award of $20,000 was too low considering her particular vulnerability and the seriousness of the offensive treatment, including the bad faith nature of Applied Consumer’s treatment of her.

The Governing Principles

[54] Section 46.1(1) of the Code states:

46.1 (1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

[55] In Keays, at para. 63, Bastarache J. noted that the restriction of monetary compensation to loss arising out of the infringement confirmed the Code’s remedial as opposed to punitive thrust. Thus damages in this context are not designed to punish the employer but rather remedy the effects of discrimination.

[56] Section 46.1 mirrors the remedial powers given to the Ontario Human Rights Tribunal (the “Tribunal”) under s. 45.2, which pertains where a person has applied to the Tribunal for an order. That section states:

45.2 (1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act. [Emphasis added.]

[57] In Lane v. ADGA Group Consultants Inc. (2008), 2008 39605 (ON SCDC), 91 O.R. (3d) 649, the Divisional Court outlined the relevant principles applicable to assessing damages under the Code. Although Lane was decided under what was then s. 41(1) of the Code, the section, while not identical in wording, conveyed similar powers:

41. (1) Where the Tribunal, after a hearing, finds that a right of the complainant under Part I has been infringed and that the infringement is a contravention of section 9 by a party to the proceeding, the Tribunal may, by order,

(a) direct the party to do anything that, in the opinion of the Tribunal, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices; and

(b) direct the party to make restitution, including monetary compensation, for loss arising out of the infringement, and, where the infringement has been engaged in wilfully or recklessly, monetary compensation may include an award, not exceeding $10,000, for mental anguish.

[58] Writing for the court, Ferrier J. characterized the damages awarded under s. 41(1)(b) as “general damages to compensate for the intrinsic value of the infringement of rights under the [Code]; it is compensation for the loss of the right to be free from discrimination and the experience of victimization”: Lane, at para. 149.

[59] In outlining the considerations with respect to quantum, Ferrier J. stated, at paras. 153-54:

This court has recognized that there is no ceiling on awards of general damages under the [Code]. Furthermore, Human Rights Tribunals must ensure that the quantum of general damages is not set too low, since doing so would trivialize the social importance of the [Code] by effectively creating a “licence fee” to discriminate.

Among the factors that Tribunals should consider when awarding general damages are humiliation; hurt feelings; the loss of self-respect, dignity and confidence by the complainant; the experience of victimization; the vulnerability of the complainant; and the seriousness of the offensive treatment. [Citations omitted.]

[60] Although Lane does not deal specifically with s. 46.1, in my view the similarity between the remedial authority granted under the two provisions supports its application in the s. 46.1 context. And, in several decisions exercising jurisdiction under s. 46.1, the Superior Court has looked to the decision in Lane for guidance in assessing damages for human rights claims raised in conjunction with a wrongful dismissal claim: Wilson v. Solis Mexican Foods Inc., 2013 ONSC 5799; Silvera v. Olympia Jewellery Corp., 2015 ONSC 3760.

[61] The Tribunal expanded on the factors listed in Lane in Arunachalam v. Best Buy Canada, 2010 HRTO 1880, at paras 51-54:

Cases with equivalent facts should lead to an equivalent range of compensation, recognizing, of course, that each set of circumstances is unique. Uniform principles must be applied to determine which types of cases are more or less serious. Of course there will always be an element of subjective evaluation in translating circumstances to dollars, but the Tribunal has a responsibility to the community and parties appearing before it to ensure that the range of damages based on given facts is predictable and principled….

The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16 ().

The first criterion recognizes that injury to dignity, feelings, and self[-]respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38. [Emphasis added.]

[62] The considerations discussed in Sanford, at para. 38, include:

• the immediate impact of the discrimination and/or harassment on the complainant’s emotional and/or physical health;

• the ongoing impact of the discrimination and/or harassment on the complainant’s emotional and/or physical health;

• the complainant’s vulnerability;

• objections to the offensive conduct;

• the respondent’s knowledge that the conduct was not only unwelcome but viewed as harassment or discrimination;

• the degree of anxiety the conduct caused; and

• the frequency and intensity of the conduct.

The Principles Applied

[63] With respect, I view the motion judge’s analysis under this head of damages as being flawed in two respects.

[64] First, while the motion judge noted that Applied Consumer’s conduct was “unconscionable”, suggesting he found it to be objectively serious, he failed to consider the impact of the discrimination on Ms. Strudwick. As a result, he did not take into account:

• Ms. Strudwick’s immediate feelings of isolation, anxiety, stigmatization and humiliation, which were accompanied by physical symptoms including loss of appetite, exhaustion and headaches;

• Ms. Strudwick’s subsequent diagnosis of depression, anxiety and an adjustment disorder;

• Ms. Strudwick’s vulnerability, including that she had only recently become deaf and her reliance on employment with Applied Consumer to support herself; and

• that Ms. Strudwick did not object to offensive conduct that went on for many months, for fear of losing her job.

[65] The effect of Applied Consumer’s victimization of Ms. Strudwick was both profound and prolonged. The evidence demonstrated that she suffered significant emotional and physical difficulties as a result of Applied Consumer’s abusive treatment of her. Her circumstances, as a widow who had acquired a serious disability late in life and who had no other source of income, made the effects of the discrimination particularly severe.

[66] Second, while he considered Applied Consumer’s “abject failure” to accommodate Ms. Strudwick, the motion judge erred, in my view, by not taking into account an important exacerbating factor – that the company’s victimization of Ms. Strudwick went beyond failing to accommodate her hearing loss; much of the abuse was actually designed to increase the difficulties she was experiencing at work.

[67] As I will explain, Applied Consumer is vicariously liable for this harassment.

[68] Section 46.3(1) of the Code provides for the vicarious liability of corporations for the acts of their officers, employees or agents. While a corporation cannot be held vicariously liable for the acts of its employees, agents or officers when it comes to harassment, the failure of management to deal with the harassment, thereby creating a poisoned work environment, is a violation under s. 5(1) of the Code for which the corporation can be held vicariously liable: Farris v. Staubach Ontario Inc., 2012 ONSC 3876, 294 O.A.C. 187 (Div. Ct.), at para. 33. Furthermore, if the individual responsible for the harassment is a directing mind of the corporation, then the corporation can also be held liable for the individual acts of harassment: Farris, at para. 33.

[69] Mr. Hoffman, responsible for managing the company in Mr. Berta’s absence, appears to have been the primary participant in the harassment of Ms. Strudwick. However, he was not the only employee involved in the abuse. Ms. Camilleri featured prominently in Ms. Strudwick’s despicable treatment. Sadly, other employees were made to participate in the harassment in at least one way, as the evidence indicates that Ms. Camilleri would demand that other workers call Ms. Strudwick, even though she could not answer. Ms. Camilleri would then stand over these employees to ensure they carried out her orders designed to further humiliate Ms. Strudwick. Fearful of themselves becoming the target of Mr. Hoffman and Ms. Camilleri’s ire, the other employees began avoiding Ms. Strudwick.

[70] Thus not only did a managing employee participate in the harassment, he failed to address the harassment perpetrated by another employee. The result was a highly poisoned work environment.

[71] As a consequence of these two errors, this court is obliged to interfere.

[72] In order to determine the appropriate damage award in this aspect of the claim, it is helpful to examine the range of compensation that has been awarded in similar cases. This review should be by no means determinative of the ultimate award, however, as I agree with Ferrier J.’s observation in Lane that there should be no cap on damages arising from the violation of an individual’s human rights. The circumstances surrounding the victim and the impact of the abuse are too vast to responsibly identify any upper limit.

[73] Budd v. 783720 Ontario Inc., 2015 HRTO 825, is relevant for its own contribution to the range of damages under this head and for the Tribunal’s canvas of several decisions involving discrimination on the basis of disability. There, the applicant, a five-year employee of the respondent company, was deemed to have quit after she missed work because of an episode of acute anxiety and depression. She did not suffer long-term physical or psychological consequences. In awarding the applicant $25,000, the Tribunal considered the following case law, at paras. 269-71:

In Simpson v. Commissionaires (Great Lakes), 2009 HRTO 1362, the applicant was awarded $10,000 for compensation for injury to dignity, feelings and self-respect where the respondent failed to properly consider the applicant’s need for disability-related accommodation. But in Simpson, the applicant continued in her employment with the respondent.

In Krieger v. Toronto Police Services Board, 2010 HRTO 1361, the Tribunal awarded $35,000 for compensation for injury to dignity, feelings and self-respect where the respondent failed to accommodate the applicant’s post-traumatic stress disorder and terminated his employment for reasons connected to his disability. However, that case involved a lengthy discriminatory period of suspension from work which exacerbated the impact on the applicant.

In Lopetegui v. 680247 Ontario, 2009 HRTO 1248, the Tribunal awarded $20,000 where the applicant was unable to work as a result of injuries sustained in a car accident. He provided the respondent with medical documentation indicating he was temporarily unable to work and requested modified duties. The respondent refused to provide modified work and subsequently terminated his employment in part because he had taken a leave of absence without permission.

[74] In my view, the circumstances here require damages in excess of those awarded in these cases.

[75] As to the objective seriousness of the conduct, as previously described, Applied Consumer’s conduct was not a one off. Applied Consumer refused every one of Ms. Strudwick’s requests for accommodation, even those she offered to pay for herself. It then took steps to exacerbate the impact of her deafness on her ability to perform her job to force her to resign. When that did not work, the company fired her for a frivolous and particularly offensive reason and in a manner intended to cause maximum embarrassment.

[76] The effect of this malicious and heartless treatment on Ms. Strudwick was significant, as outlined above at para. 64. I will not repeat that analysis here, but needless to say Ms. Strudwick suffered humiliation and the loss of self-respect, dignity and confidence as a direct result of Applied Consumer’s conduct.

[77] These circumstances, considered in the light of the cases referred to above and corresponding awards, lead me to conclude that an award of $40,000 is warranted under this head of damages.

(e) Intentional Infliction of Mental Distress

[78] The motion judge, citing Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, 120 O.R. (3d) 481, at para. 41, pointed to the elements that must be proven in order to make out the tort of intentional infliction of mental suffering - the defendant’s conduct must have been flagrant and outrageous, and calculated to harm the plaintiff and it must have caused the plaintiff to suffer a visible and provable illness.

[79] The motion judge found that this test was met “with regard to the treatment to which [Ms. Strudwick] was subjected after she became deaf until her dismissal.” He accepted that Applied Consumer’s conduct caused Ms. Strudwick to suffer an adjustment disorder with mixed anxiety and depressed mood, requiring psychological treatment. He awarded $18,984 to Ms. Strudwick to reimburse her for the cost of her cognitive behavioural therapy sessions.

[80] Ms. Strudwick argues that this amount is inadequate given Applied Consumer’s egregious conduct and the nature of the mental distress caused. She also submits that the motion judge erred by awarding damages based solely on the costs of her treatment by failing to award any compensation for the injury itself. Consequently, she seeks damages of $150,000 for this tort.

[81] Ms. Strudwick also submits that the evidence before the trial judge was that the therapy sessions would be far more effective if she had sign language interpretation, resulting in a further cost of $10,440 for total therapy costs of $29,424 rather than $18,984.

The Governing Principles

[82] After the tort of intentional infliction of mental suffering has been established, the resulting illness provides the measureable damages, and the ordinary principles of assessment for damages relating to personal injuries apply. An individual may therefore recover pecuniary losses, including medical expenses, and non-pecuniary losses, including pain and suffering and loss of amenities of life: Remedies in Tort, ed. by Linda D. Rainaldi, loose-leaf (Toronto: Thomson Reuters Canada Ltd., 2016), at p. 10-24.

The Principles Applied

[83] In my view, the motion judge erred in two ways in his assessment of damages for the tort of intentional infliction of mental distress.

[84] First, he failed to consider the increased costs of therapy resulting from Ms. Strudwick’s permanent deafness. The evidence before him established that optimal treatment for Ms. Strudwick would involve a sign language interpreter, or a therapist able to utilize sign language. This evidence also included the current rates for the services of an American Sign Language interpreter as outlined by the Ontario Hearing Society: $120 per interpreter for up to two hours of service, plus an Assignment Coordination Fee of $25 per request.

[85] The motion judge accepted that Ms. Strudwick required 18 months of weekly cognitive behavioural therapy. This works out to approximately 78 weeks of therapy. Assuming a 45-minute session, as recommended before the motion judge, the weekly cost for an interpreter would be $145. This results in an additional $11,310 in damages.

[86] Second, the motion judge failed to consider the non-pecuniary losses flowing from Applied Consumer’s intentional infliction of mental distress upon Ms. Strudwick. I am aware of the concerns of double recovery under this head of damage, given the role Mr. Hoffman’s misconduct plays in the determination of damages for the Code violations and aggravated damages. Nevertheless, I would award an additional $5,000 to address Ms. Strudwick’s pain and suffering, and loss of enjoyment of life.

[87] As a result, I would award a total of $35,294 in damages for the tort of intentional infliction of mental suffering.

(f) Aggravated Damages

[88] The motion judge, citing Boucher, described aggravated damages as a compensatory part of contract damages intended to address “the additional harm suffered because of the way in which the contract was breached”. Recognizing that such damages are to address employer conduct that is “unfair or is in bad faith”, the motion judge identified the concern over double recovery arising out of awarding such damages in addition to those awarded based on pay in lieu of notice, the breach of the Code and the tort of intentional infliction of mental distress, and declined to make any award under this head of damage.

[89] Ms. Strudwick argues that the manner of dismissal here was more egregious than in Boucher and submits that this court should award $200,000 for aggravated damages.

The Governing Principles

[90] In Keays, at paras. 50-55, Bastarache J. traced the development of damages for conduct in the termination of employment and concluded, at para. 57, that “[d]amages resulting from the manner of dismissal must then be available only if they result from the circumstances described in Wallace, namely where the employer engages in conduct during the course of dismissal that is ‘unfair or is in bad faith by being, for example, untruthful, misleading or unduly insensitive’”. As the court in Wallace held employers to an obligation of good faith and fair dealing in the manner of dismissal, failure to act in such a manner can lead to foreseeable, compensable damages: Keays, at para. 58.

[91] In terms of quantifying damages resulting from the manner of termination, Bastarache J. stated, at para. 59:

[T]here is no reason to retain the distinction between “true aggravated damages” resulting from a separate cause of action and moral damages resulting from conduct in the manner of termination. Damages attributable to conduct in the manner of dismissal are always to be awarded under the Hadley principle. Moreover, in cases where damages are awarded, no extension of the notice period is to be used to determine the proper amount to be paid. The amount is to be fixed according to the same principles and in the same way as in all other cases dealing with moral damages. Thus, if the employee can prove that the manner of dismissal caused mental distress that was in the contemplation of the parties, those damages will be awarded not through an arbitrary extension of the notice period, but through an award that reflects the actual damages.

[92] Finally, Bastarache J. cautioned that courts must take care to retain the fundamental nature of damages for conduct in dismissal. In the case of damages for the manner of dismissal, that means remembering that the award is compensatory and avoiding the pitfall of double-compensation or double-punishment: Keays, at para. 60.

The Principles Applied

[93] I agree with the motion judge that there is some overlap between the damages Ms. Strudwick claims under this head of damages and those awarded for wrongful dismissal (in particular, the $8,400.18 awarded for the “Wallace factor”), the violation of the Code and the tort of intentional infliction of mental distress.

[94] However, given the extreme bad faith and unfair treatment exhibited by Applied Consumer in the manner in which it dismissed Ms. Strudwick and its impact on her, I am of the view that the motion judge erred in holding that there was a complete overlap.

[95] In terms of the appropriate amount for aggravated damages, this case is similar to Boucher, in which this court upheld a $200,000 aggravated damages award against Wal-Mart. In Boucher, the damage award flowed from the manner in which Wal-Mart dealt with the misconduct of one of its employees, Mr. Pinnock, and Ms. Boucher’s complaints about that misconduct. As Laskin J.A. explained, at para. 72:

Wal-Mart took no steps to bring an end to Pinnock’s misconduct. It did not take Boucher’s complaints seriously, finding them unsubstantiated despite substantial evidence from co-workers that they were well-founded. It failed to enforce its workplace policies, which on their face were designed to protect employees from the kind of treatment Pinnock subjected Boucher to. And it threatened Boucher with retaliation for making her complaints, an especially vindictive act. Despite all of this Boucher was willing to continue to work at the store if Wal-Mart addressed her complaints about Pinnock. Only when Wal-Mart refused to do so, did Boucher resign. These considerations show that Wal-Mart’s own conduct justified a separate and substantial award for aggravated damages.

[96] In response to Mr. Pinnock’s conduct and Wal-Mart’s failure to do anything about it, Ms. Boucher experienced stress, could not eat or sleep, and suffered from various medical symptoms, including weight loss. She was prescribed a sedative and referred to a psychiatrist. Her symptoms cleared up once Mr. Pinnock was no longer a part of her life: Boucher, at paras. 37-38, 52.

[97] At a similarly high end of the scale, in Pate Estate v. Galway-Cavendish and Harvey (Township), 2013 ONCA 669, 117 O.R. (3d) 481, the respondent, Mr. Pate, was awarded $100,000 for mental distress ($75,000 in aggravated damages plus $25,000 in Wallace damages). The appellant did not appeal that award. Mr. Pate had been terminated on the alleged basis that his employer had uncovered discrepancies with respect to building permit fees. Mr. Pate was not provided with particulars, but told that if he resigned, the Township would not contact the police. Mr. Pate refused to resign and his employment was terminated. The appellant in that case subsequently pressured individuals within the O.P.P. to lay charges. Mr. Pate was acquitted, but he remained in the public spotlight for three years and did not obtain employment in the municipal field again.

[98] At a different end of the scale, the court in Middleton v. Highlands East (Municipality), 2013 ONSC 763, awarded $30,000 in aggravated damages where the plaintiff received no procedural fairness (being terminated without investigation into the concerns prompting the termination and without being advised of the concerns), was not paid his statutory minimums, was not provided with a letter of recommendation, and had a record of employment stating he did not meet the expectations of his position. He suffered embarrassment, damage to his self-worth and self-esteem, interference with his sleep and strains in his relationships with others.

[99] In my view, Applied Consumer’s conduct here was just as egregious as Wal-Mart’s conduct in Boucher, almost as reprehensible as the Township’s conduct in Pate Estate and considerably worse than that in Middleton.[^5]

[100] I am aware that this conduct has been discussed in detail earlier in these reasons; but it is important to bear in mind certain relevant aspects in order to put my view of the appropriate quantum of aggravated damages in perspective.

[101] In the immediate lead-up to her dismissal, Ms. Strudwick was confronted in front of an estimated 13 other employees, yelled at and called a “goddamned fool”. She was then informed of her termination for a senseless reason. Paperwork had been prepared by the company that was designed to deprive her of various legal rights. When she would not sign, she was not given money the company then owed her. She was further humiliated by having to gather her belongings and leave under the stares of co-workers.

[102] The abuse did not cease after termination. Government intervention was needed before Applied Consumer gave Ms. Strudwick the pay it owed her at the time of dismissal. Then the company tendered a record of employment that delayed Ms. Strudwick’s entitlement to receive employment insurance.

[103] This conduct resulted in lasting psychological harm to Ms. Strudwick. As previously noted, she was diagnosed with an adjustment disorder with mixed anxiety and depressed mood requiring prolonged weekly cognitive behavioural therapy.

[104] Taking all of this abuse into account, I would award Ms. Strudwick $70,000 for aggravated damages. From this amount the award of $8,400.18 for the “Wallace” factor must be deducted to prevent overlap, resulting in a further $61,599.82 under this head of damages.

(g) Punitive Damages

[105] The motion judge identified this aspect of Ms. Strudwick’s claim as dealing with the independent and actionable wrong the Supreme Court addressed in Whiten. He emphasized, among other things, that such damages are the exception, designed to respond to highly reprehensible conduct to mark the community’s condemnation and deter others from such conduct. The motion judge noted that punitive damages should be awarded only when compensatory damages are insufficient.

[106] The motion judge held that Applied Consumer’s misconduct was deliberate. It was designed to force Ms. Strudwick to quit her job. Furthermore, the abuse persisted for six months prior to her dismissal that the company attempted to justify on the inane and insulting basis that she misbehaved at the Toastmasters’ event.

[107] The motion judge recognized the relevance of the impact of any such award on the financial wherewithal of the wrongdoer.

[108] Against this background the motion judge found that the approximately $94,940 he had awarded under the other heads of damage was insufficient to deter others from engaging in conduct of this nature. On this basis he assessed punitive damages at $15,000.

[109] Ms. Strudwick submits that the motion judge erred in failing to take into account the manner in which Applied Consumer responded to her legitimate claims arising out of her wrongful dismissal and related treatment and overall awarded damages in this category that are manifestly too low. She asks this court to award her $150,000 for punitive damages.

The Governing Principles

[110] In Keays, at para. 62, Bastarache J. succinctly reviewed the evolution of punitive damages:

In Vorvis, McIntyre J., for the majority, held that punitive damages are recoverable provided the defendant’s conduct said to give rise to the claim is itself “an actionable wrong”. This position stood until 2002 when my colleague Binnie J., writing for the majority, dealt comprehensively with the issue of punitive damages in the context of the Whiten case. He specified that an “actionable wrong” within the Vorvis rule does not require an independent tort and that a breach of the contractual duty of good faith can qualify as an independent wrong. Binnie J. concluded, at para. 82, that “[a]n independent actionable wrong is required, but it can be found in the breach of a distinct and separate contractual provision or other duty such as a fiduciary obligation.”

[111] Bastarache J. also repeated the court’s earlier cautionary notes as to the awarding of punitive damages, stating, at para. 68:

[T]his Court has stated that punitive damages should “receive the most careful consideration and the discretion to award them should be most cautiously exercised” (Vorvis, at pp. 1104-5). Courts should only resort to punitive damages in exceptional cases (Whiten, at para. 69). The independent actionable wrong requirement is but one of many factors that merit careful consideration by the courts in allocating punitive damages. Another important thing to be considered is that conduct meriting punitive damages awards must be “harsh, vindictive, reprehensible and malicious”, as well as “extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment” (Vorvis, at p. 1108).

[112] In distinguishing punitive damages from damages for conduct in the manner of dismissal, so as to avoid duplication in damage awards, Bastarache J. explained, at para. 62, that “[d]amages for conduct in the manner of dismissal are compensatory; punitive damages are restricted to advertent wrongful acts that are so malicious and outrageous that they are deserving of punishment on their own” (emphasis added). He noted that, even had the circumstances in Keays justified an award of punitive damages, the lower courts should have questioned “whether the allocation of punitive damages was necessary for the purposes of denunciation, deterrence and retribution, once the damages for conduct in dismissal were awarded”, given the same conduct underlay the awards under both heads of damages: para. 69.

The Principles Applied

[113] It is true that the same conduct underlies the awards under both punitive damages and damages for conduct in dismissal. However, such will invariably be the situation. What justifies punitive damages ultimately is the conclusion, in exceptional cases, that compensatory damages are simply insufficient to respond to the conduct being addressed.

[114] I agree with the motion judge that this is such a case. In my view, Applied Consumer’s conduct in relation to Ms. Strudwick, who the evidence demonstrates was a highly regarded, long-term, faithful employee who became profoundly disabled late in life, can only be described as a marked departure from any conceivable standard of decent behaviour. Such conduct deserves punishment on its own. The imposition of punitive damages is necessary for the purposes of denunciation, deterrence and retribution.

[115] With respect, however, I am of the view that in assessing the quantum of punitive damages the motion judge fell into legal error in two respects. First, he viewed Applied Consumer’s failure to try to conceal the misconduct or failure to profit from the misconduct as mitigating the company’s level of blameworthiness. I disagree. In my view, in the circumstances of this case, these factors are neutral. Second, the motion judge over-emphasized the impact of a damage award on the company, particularly given the lack of evidence about the company’s financial situation. In my view, these errors led the motion judge to award an amount insufficient to accomplish the objectives of retribution, deterrence and denunciation. As a result, this court is justified in conducting its own analysis of the appropriate quantum of punitive damages.

[116] As I would already hold Applied Consumer responsible for significant compensatory damages for its treatment of Ms. Strudwick, as indicated above, it is necessary to determine the appropriate amount of punitive damages having regard to this amount. I am also mindful of the impact of the additional amounts awarded, totaling $192,850.79, and that punitive damages can only be awarded where the aggregate amount of compensatory damages is insufficient to accomplish the objectives of retribution, denunciation and deterrence.

[117] In Boucher, involving similar circumstances, this court reduced amounts awarded by the jury to a total of $110,000 for punitive damages.[^6] However, I regard Applied Consumer’s conduct as being significantly more egregious than that in Boucher. The misconduct lasted longer – in Boucher, it was six months; here, Ms. Strudwick was victimized for years, taking into account her treatment pre- and post-dismissal. I also note that, unlike in Boucher, the motion judge specifically found that Applied Consumer embarked upon its campaign of abuse to force Ms. Strudwick’s resignation.

[118] That said, the financial resources of Applied Consumer are of some relevance. In Boucher, the employer was a very large multi-national corporation. And, while the evidence is scant, the record does indicate that Applied Consumer is a relatively small, family-held company with approximately 80 employees.

[119] Taking the various relevant factors into consideration, I would award Ms. Strudwick $55,000 in punitive damages.

(h) Total Damages

[120] The increases under the various heads of damages above result in a total of $247,850.79. After subtracting the $6,049.92 awarded for the cost of replacing benefits, the amount is $241,800.87. As Ms. Strudwick is limited by the amount claimed in the statement of claim, I must reduce the overall total by $1,800.87. As a result, the amount awarded would be $246,049.92.

APPEAL – CONCLUDING COMMENTS

[121] In my view, it is necessary to respond to Applied Consumer’s argument that any penalties should not be visited on the company, but rather on Mr. Hoffman.

[122] I reject this argument. First, Applied Consumer was Ms. Strudwick’s employer. Any damages flowing from her wrongful dismissal, and the manner in which she was dismissed, are properly visited upon it.

[123] Second, in Applied Consumer’s own words, during Mr. Berta’s absence Mr. Hoffman “took over running the business”. Applied Consumer cannot escape responsibility for the actions of its agents. An employer is jointly and severally liable for the tortious conduct of an agent acting with express, implied or apparent authority: Gerald Fridman, Canadian Agency Law, 2nd ed. (Markham: LexisNexis Canada Inc., 2012) at p. 294. And as discussed above, Applied Consumer is also vicariously liable under the Code for Mr. Hoffman and Ms. Cavilleri’s harassment of Ms. Strudwick based on her disability.

[124] Moreover, although Mr. Berta terminated the employment of Mr. Hoffman following his return to work, Applied Consumer continued to do everything possible to avoid complying with its obligations to Ms. Strudwick.

[125] One final point must be made clear. While I would allow the appeal and increase the damages as indicated above, it is important to remember that I have determined the amounts I would award in relation to the various heads of damages in the light of my conclusion that the aggregate amount this court can award is limited by the total amount claimed in the statement of claim.

THE APPEAL AND CROSS-APPEAL ON COSTS

[126] In addressing costs, the motion judge expressed the view that an inordinate amount of time had been spent on preparing the default judgment materials. Mindful of the need to impose a “proportionate” amount of costs, that were fair and reasonable in accordance with the principles in Boucher, the motion judge fixed costs in the amount of $40,000 inclusive of disbursements and applicable taxes.

[127] I see no error in this award of costs. I would therefore not give effect to Ms. Strudwick’s submissions that they are too low or grant Applied Consumer leave to appeal the costs award on the basis that the award is too high.

DISPOSITION

[128] For these reasons, I would allow the appeal, set aside the judgment and substitute a judgment in the amount of $246,049.92. I would dismiss Applied Consumer’s application for leave to appeal costs. Further to my review of the parties’ costs submissions, I would award Ms. Strudwick her costs of this appeal in the amount of $20,000 inclusive of disbursements and applicable taxes.

“Gloria Epstein J.A.”

“I agree Doherty J.A.”

“I agree B.W. Miller J.A.”

Released: June 30, 2016 “DD”

[^1]: Counsel for Ms. Strudwick consented to counsel for Applied Consumer’s making limited submissions on the issue of appropriate pay in lieu of notice.

[^2]: The Supreme Court in Burkhardt paraphrases r. 147 and does not provide a direct citation beyond the “Ontario Rules of Practice”; however, this appears to have been the wording at the time of the decision.

[^3]: Bardal v. Globe & Mail Ltd. (1960), 1960 294 (ON SC), 24 D.L.R. (2d) 140 (Ont. H.C.J.).

[^4]: In conducting this analysis, I have considered Angela Swan’s paper, “At the Intersection of Contract and Tort: Risk, Valuation, Interest and Timing” delivered at the National Judicial Institute’s seminar on Common Law Rights and Remedies (19 May 2016), which helpfully canvasses this issue.

[^5]: I recognize that the damages awarded in Boucher were larger than those in Pate Estate. I would note, however, that the damages in Boucher were awarded by a jury, and this court was “not persuaded that the jury’s view of the amount [was] so plainly unreasonable that it ought to [have been reduced]”: para. 77. The damages in Pate Estate, in contrast, were awarded by the trial judge and were not appealed.

[^6]: Representing a $100,000 award against Wal-Mart and a $10,000 award against Mr. Pinnock.