Colistro v. Tbaytel, 2017 ONSC 2731

CITATION: Colistro v. Tbaytel, 2017 ONSC 2731

COURT FILE NO.: CV-08-0012

DATE: 2017-06-16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

Linda Colistro

Plaintiff

– and –

Tbaytel, The Corporation of the City of Thunder Bay and Steve Benoit

Defendants

M. Cupello, for the Plaintiff

L. Firman/D. Zulianello, for the Defendant Tbaytel.

B. Babcock, for the Defendant City of Thunder Bay

HEARD: May 9, 10, 11, 12, 13, 16, 17, 18, 19, November 28, 29, 30, December 1, 2016

Justice J. Fregeau

REASONS FOR JUDGMENT

INTRODUCTION

[1] The plaintiff claims the following damages against the defendants Tbaytel and The Corporation of the City of Thunder Bay (the “City”):

1. For constructive dismissal from employment $100,000.00, being 18 months’ salary, plus “Wallace” damages of $250,000.00;

2. For the intentional infliction of mental suffering:

i. general damages of $1,000,000.00;

ii. damages for past economic loss of $401,567.64;

iii. damages for future economic loss of $680,666.25;

iv. damages for past loss of housekeeping value of $64,533.70;

v. damages for future loss of housekeeping value of $85,834.23;

vi. aggravated damages of $500,000.00;

vii. punitive damages of $300,000.00; and,

3. The sum of $2,000.00 being a subrogated OHIP claim.

[2] The claim against the City is premised on Tbaytel being a Municipal Services Board and therefore a statutory agent of the City. The plaintiff alleges that the City is vicariously liable for any damages awarded against Tbaytel.

[3] The claim against the defendant Steve Benoit was resolved prior to trial.

SUMMARY OF THE EVIDENCE

THE PLAINTIFF’S CASE

LINDA COLISTRO

[4] Ms. Colistro was born on May 10, 1967. She was 49 years old at the time of trial and has been married for 25 years and has two children. Ms. Colistro began employment with the City telephone department as a summer student in 1988. She became a full time City employee in 1990.

[5] On January 1, 2005, pursuant to s. 197(1) of the Municipal Act, 2001, S.O. 2001, the City created Tbaytel, a Municipal Services Board. Tbaytel then assumed management and provision of the City’s telecommunications services.

[6] Ms. Colistro’s employment with the City telephone department/Tbaytel was continuous from 1988 to January 29, 2007. In January 2007, Ms. Colistro held the position of administrative assistant to Ken Esau, Executive Vice-President of Operations, a position she had held for approximately eight years.

[7] On January 29, 2007, Tbaytel held a meeting at which time Tbaytel’s President and Chief Executive Officer, Peter Diedrich, announced a structural re-organization of the company. Among other changes, Mr. Diedrich announced that Steve Benoit, a former employee of the City’s telephone department who had been terminated in 1996, had been hired as Tbaytel’s Vice-President Business Consumer Markets.

[8] Mr. Benoit had been Ms. Colistro’s immediate supervisor at the time of his termination. Upon hearing the announcement of Mr. Benoit’s hiring, Ms. Colistro became very upset. She left the meeting, went back to her office and emailed Mr. Esau, advising him that she was not feeling well. She then went home. Ms. Colistro has never returned to work at Tbaytel.

[9] Ms. Colistro testified that she had been approached by Mr. Esau in December 2006 and asked what had happened between her and Mr. Benoit in 1995. Ms. Colistro testified that she told Mr. Esau that Mr. Benoit had sexually harassed her. She testified that Mr. Esau also asked her what she would do if Tbaytel hired Mr. Benoit and that she told him “there’s no way they can rehire him again.”

[10] After Ms. Colistro went home on January 29, 2007, her husband returned to Tbaytel and requested a meeting with Mr. Diedrich. Mr. Colistro met with Mr. Esau and not Mr. Diedrich. Mr. Esau then called Ms. Colistro and requested that she return to Tbaytel at 5:30 pm that day to meet with him and Christine Seeley, Vice-President of Human Resources (“VP of HR”). Over Mr. Esau’s objections, Ms. Colistro insisted that her husband also be present at this meeting.

[11] Ms. Colistro met with Mr. Esau and Ms. Seeley that evening. According to Ms. Colistro, she was asked about her concerns regarding Mr. Benoit’s hiring and became very emotional. She testified that she told Mr. Esau and Ms. Seeley that Mr. Benoit had been terminated by the City telephone department in 1996 as a result of his harassment of her and others. Ms. Colistro further testified that she gave Mr. Esau and Ms. Seeley numerous, specific examples of inappropriate sexual and demeaning comments that Mr. Benoit had made to her in 1994 and 1995 prior to his 1996 termination.

[12] Ms. Colistro testified that Ms. Seeley then told her that she had checked with Alan Hjorth in the City’s Human Resources department who advised her that he found nothing about this in the City’s files. Ms. Seeley also advised Ms. Colistro that she was waiting for a phone call from Sharon Hacio who had been General Manager of the City telephone department in 1995. Ms. Seeley’s contact with Mr. Hjorth and Ms. Hacio was apparently prompted by Mr. Colistro’s earlier meeting with Mr. Esau.

[13] Ms. Colistro testified that Ms. Seeley suggested to her that she could have her “old job” back, as executive assistant to Al Birch, Vice-President Field Operations. In this position, Ms. Colistro would work in a separate building, adjacent to the building Mr. Benoit and other VPs occupied. Ms. Colistro viewed this as a demotion. Ms. Colistro testified that after the January 29, 2007 meeting she was “…having panic attacks. I couldn’t breathe. I was vomiting. I was crying constantly and just did not sleep at all; very upset.”

[14] Ms. Colistro did not attend work on January 30 and February 1, 2007. On both dates she emailed Mr. Esau advising him that she would not be in. In her February 1, 2007, email to Mr. Esau, she told him that, “I am on the verge of having a nervous breakdown. I am not eating, sleeping, and I am vomiting.” Ms. Colistro saw her family physician, Dr. Rao, on February 1, 2007. Dr. Rao placed Ms. Colistro on “stress leave” until March 1, 2007. Dr. Rao’s note was forwarded to Tbaytel at some point in time shortly after February 1, 2007. Ms. Colistro testified that her regular pay, including a pay increase, from Tbaytel continued from January 29, 2007, until May 17, 2007, her short term disability period.

[15] On February 12, 2007, Ms. Colistro wrote a letter to Mr. Birch, who was also co-chair of the Tbaytel Health and Safety Committee. In this letter, she advised Mr. Birch of Mr. Benoit’s behavior in 1994 and 1995 and that she felt the hiring of Mr. Benoit in 2007 would create “an unhealthy, unsafe working environment.” Mr. Birch responded on February 16, 2007, advising that he had referred her concerns to the Labour Program Human Resources Skills Development Canada and also to Ms. Seeley and Mr. Diedrich.

[16] On consent of all parties, correspondence between counsel for Ms. Colistro and counsel for Tbaytel was entered into evidence. On February 14, 2007, Mr. Cupello, counsel for the plaintiff, wrote to Mr. Firman, counsel for Tbaytel, requesting a meeting. Mr. Firman replied on February 15, 2007, confirming a meeting on March 1, 2007, with the plaintiff and her husband if she wished, himself, Ms. Seeley and Mr. Diedrich. Mr. Cupello advised Mr. Firman that Ms. Colistro refused to meet with Tbaytel if Ms. Seeley was present.

[17] Ms. Colistro, together with her husband and her lawyer, attended at Tbaytel offices on March 1, 2007, for the scheduled meeting. Mr. Diedrich, Ms. Seeley and Mr. Firman were present. Ms. Colistro again refused to meet with the Tbaytel representatives with Ms. Seeley present. Tbaytel refused to meet if she was not present. Ms. Colistro was of the opinion that Ms. Seeley was a personal friend of Mr. Benoit as a result of the two of them having worked together for eight years at a previous employer.

[18] Ms. Colistro identified a March 6, 2007 letter from Mr. Firman to Mr. Cupello, apparently in response to her refusing to participate in the March 1, 2007 meeting. This letter referenced a February 6, 2007 letter from Mr. Diedrich directly to Ms. Colistro. In the February 6, 2007 letter Mr. Diedrich advised Ms. Colistro that Tbaytel had “proceeded with (their) own due diligence” in regard to her complaints of January 29, 2007. Mr. Diedrich summarized the findings of that process and advised that Tbaytel felt that they had no reason not to proceed with the hiring of Mr. Benoit. He further advised that her accusations were being taken seriously, that Mr. Benoit was to be spoken to, that she was a valuable employee and that Tbaytel was prepared to meet with her as soon as possible to discuss accommodating her needs in light of their intention to proceed with the hiring of Mr. Benoit.

[19] The March 6, 2007 letter reiterated the February 6, 2007 accommodation proposals. Tbaytel also advised Ms. Colistro that a February 23, 2007 note from Dr. Rao advising that Ms. Colistro was to remain off work indefinitely was insufficient to excuse her ongoing absence from work. She was informed that she must either return to work or submit the proper forms for salary continuance during the short term disability period. Tbaytel also proposed mediation, with Ms. Seeley participating but not interacting directly with the plaintiff during the mediation. Ms. Colistro’s counsel responded positively to the suggestion of mediation, albeit amending some of the conditions.

[20] Ms. Colistro acknowledged receipt of a May 8, 2007 letter from Tbaytel to her lawyer in which Tbaytel proposed parameters for mediation and advised of their proposed accommodation for Ms. Colistro, essentially reiterating Tbaytel’s February 6, 2007 proposal directly from Mr. Diedrich—“not working directly or indirectly with Mr. Benoit.” In this letter, Tbaytel qualified their accommodation proposal:

“We have already indicated to you the steps that we have taken in order to isolate Ms. Colistro, to the greatest extent possible, from Mr. Benoit. You have these steps as previously outlined in a letter from me. Frankly, we are not prepared to do any more and Mr. Benoit will continue in his present position. That is, we will minimize any direct contact of Ms. Colistro with Mr. Benoit, but we cannot be responsible for there being absolutely no contact whatsoever since this may become necessary in the course of business being carried out by the organization.”

[21] At this point in time, Ms. Colistro was under the care of her family physician in consultation with a psychiatrist. She had been prescribed anti-depressants and sleep medication.

[22] Ms. Colistro’s counsel responded by letter dated May 11, 2007. Ms. Colistro’s conditions for mediation were repeated and her position as to her return to work and accommodation in light of Mr. Benoit’s hiring were set out:

Our client is prepared to resolve the outstanding issues upon the basis that she returns to work at the job position that she was in prior to her leave with the…understanding…that her job description will not in any way have changed…and it will be upon the basis that she have no contact with Mr. Benoit…and so long as she is not exposed to him…

[23] Tbaytel clarified its accommodation proposal by response dated June 13, 2007:

Ms. Colistro will remain in her current position as Administrative Assistant to the Executive Vice-President (Ken Esau). In this position, Ms. Colistro would have indirect contact with Mr. Benoit and such contact would be significant as this position resides directly outside the office of the President and CEO and such individual has daily contact with the Business and Consumer Markets Division headed by Mr. Benoit. (emphasis in original)

Ms. Colistro could transfer to her previous position as Administrative Assistant to the Vice-President – Field Operations (Al Birch). In this position, Ms. Colistro would have direct and indirect contact with Mr. Benoit, but such contact would be minimal.

In addition, we agree that Mr. Benoit will not address Ms. Colistro directly with respect to either of these options. Ms. Colistro will no longer be required to provide relief to the Executive Administrative Assistant to the CEO as this would restrict Mr. Benoit’s access to the CEO…we cannot guarantee complete non-exposure to Mr. Benoit since this is impossible to do in an organization the size of Tbaytel…we have attempted to minimize such contact with Mr. Benoit at all times.

[24] Ms. Colistro rejected both options by letter dated August 10, 2007. The first option would result in her having significant contact with Mr. Benoit. The second would also entail contact with Mr. Benoit and was further seen by her as a demotion. Ms. Colistro testified that she was not prepared to consider any option which could result in contact with Mr. Benoit. Ms. Colistro remained under the care of her physician at this time. She continued to suffer panic attacks and nightmares and was not sleeping or eating properly.

[25] In an Attending Physician’s Update to Manulife Financial (“Manulife” – Tbaytel’s disability insurer) dated June 21, 2007, Ms. Colistro’s doctor reported her diagnosis as “post-traumatic stress disorder and major depression.” Ms. Colistro remained on medication and was also seeing a counsellor at the time of the report. Ms. Colistro qualified for STD benefits to her maximum STD date, May 17, 2007. She then successfully applied for LTD benefits which she received without interruption. Ms. Colistro also applied for and received CPP disability benefits, effective October 2008. This resulted in a corresponding reduction in her Manulife LTD benefits.

[26] Ms. Colistro identified a December 1, 2015 treating physician’s report from Dr. D. Whitney, a psychiatrist she was referred to by her family doctor. Dr. Whitney met with Ms. Colistro for approximately 90 minutes on November 30, 2015. Dr. Whitney’s November 1, 2015 diagnosis of Ms. Colistro was:

1. post-traumatic stress disorder (“PTSD”);

2. chronic adjustment disorder with depressed and anxious mood; and

3. history of major depression.

[27] Ms. Colistro also identified a Psychological Health Medical Update Form completed by Dr. Whitney for Manulife and dated January 12, 2016. In this report, Dr. Whitney noted that she had diagnosed Ms. Colistro as suffering from “Major depression – chronic” and PTSD. Dr. Whitney noted that “Prognosis is very, very guarded. Given the duration of time off and her ongoing legal case her likelihood of return to productive/paid work is very low.”

[28] Ms. Colistro was next referred to a January 23, 2015 report of Dr. Pamela Johnson, a Toronto psychiatrist whom Ms. Colistro saw by videoconference on six occasions prior to this report. Dr. Johnson diagnosed Ms. Colistro as suffering from Major Depressive Disorder and PTSD, in partial remission. Dr. Johnson stated that she believed “the primary factor complicating Ms. Colistro’s condition and recovery has been the duration of this legal process.”

[29] Dr. Johnson further noted that, “although Ms. Colistro has had significant improvement in her depressive symptoms, she is not able to return to work at this time. She continues to experience symptoms of PTSD which would prevent her return to work as an administrative assistant in an office type setting…I expect that she will be able to return to (similar employment) when these legal proceedings are completed and she is better able to benefit from therapeutic approaches to her residual trauma symptoms.”

[30] Ms. Colistro identified the October 28, 2009 report of Dr. Suzanne Allain, a psychiatrist retained by Manulife to conduct an independent medical examination. Dr. Allain diagnosed Ms. Colistro as suffering from “Major Depression Panic disorder with Agoraphobia and Mild PTSD symptoms – in partial remission.”

[31] According to Ms. Colistro, she had complained about Mr. Benoit’s harassment of her to Ms. Hacio “two to three times a week” at the end of 1995. Ms. Colistro testified that Ms. Hacio did not take any immediate action but that she was soon contacted by City Manager Bruce Thom about the situation. Ms. Colistro testified that she and her husband had a lengthy meeting with Mr. Thom on November 20, 1995. Ms. Colistro was formally interviewed by Mr. Thom on November 21, 1995. Mr. Thom then instructed Christine Bates, Manager of Employment Services for the City at the time, to begin an investigation.

[32] Ms. Colistro testified that “in 1996 I found a brown envelope in my mailbox at my house filled with the investigative documents…it looked like a file on my complaint regarding the harassment.” When shown a copy of handwritten notes dated November 21, 1995, Ms. Colistro identified them as Mr. Thom’s notes from his interview with her. All counsel conceded that these notes were Mr. Thom’s notes from his November 21, 1995 interview of Ms. Colistro. These notes detail Ms. Colistro’s complaints of being sexually harassed by Mr. Benoit. She confirmed that these notes were included in the package that was left in her mailbox. Ms. Colistro also identified a December 11, 1995 letter from Ms. Hacio to Mr. Benoit as being in the package left in her mailbox. In this letter, Ms. Hacio advised Mr. Benoit that he was being suspended pending the outcome of an investigation with respect to sexual harassment and other issues.

[33] After Mr. Benoit’s termination, Ms. Colistro took no action against the City “because the situation was taken care of…I felt that they did the due diligence to take care of the situation.”

[34] Ms. Colistro testified that she was a happy, outgoing person prior to January 29, 2007. According to Ms. Colistro, she was family oriented, volunteering as a soccer coach for her children and going out for dinners with her husband and friends. She also loved her job with Tbaytel. She described her life in these terms:

I felt very good, felt wonderful about my job, loved my job, enjoyed going to work. I had two separate lives; I had my work job and I had my family and I just – my life was just great.

[35] Ms. Colistro summarized her lifestyle since January 29, 2007, and up to the date of trial as follows:

My lifestyle is terrible. I yell at my kids, I’m very antisocial, I like to be by myself, just can’t – I can’t even read a book…I don’t go out, I can’t volunteer, I don’t coach soccer anymore. I do actually – I try to play soccer; I played twice since September…otherwise I don’t socialize. I’m very antisocial and isolated from the world…I don’t feel secure out in the world.

[36] Ms. Colistro further testified that she self-medicates by consuming “a lot more” alcohol than previously and that she gambles online to relieve stress.

[37] According to Ms. Colistro, she had never given any serious thought to a proposed retirement date: “the only thought I did give was listening to the radio to the Freedom 55 commercial.”

[38] Ms. Colistro identified two Personal Claims History Information forms from the Ministry of Health and Long Term Care which she suggested showed her “visits to the doctors and the clinics and the amount that has been charged.” No further evidence was adduced on this point.

[39] At the conclusion of the plaintiff’s direct examination, all counsel agreed that as of September 2007, Ms. Colistro’s LTD benefits going forward equaled 75% of gross pre-disability earnings of $4,340.18/mth, or $3,256.00/mth gross and taxable, before adjustment for CPP disability benefits. Her after tax net benefit was agreed to be $2,604.80/mth. Between May 16, 2007, and September 30, 2008, Ms. Colistro received gross LTD benefits in the amount of $53,615.47 ($3,256.00/mth); between October 1, 2008 and April 30, 2016, Ms. Colistro received gross LTD benefits in the amount of $206,418.03 ($2,268.33/mth) together with CPP disability benefits in the amount of $987.67/mth.

[40] It is not in dispute that Ms. Colistro continued to earn credited service toward her OMERS retirement pension and also qualified for an employee pension contribution disability waiver while off work because of disability. (Hereinafter referred to as “PCDW”)

[41] When cross-examined on Tbaytel’s second accommodation option, which proposed moving to the executive assistant position to Mr. Birch, Ms. Colistro acknowledged that she never inquired as to salary, benefits and pension entitlement in that position. Ms. Colistro made it quite clear that she never considered either accommodation proposal offered to her because both would entail some contact with Mr. Benoit. In her words, “I could not have any contact with Mr. Benoit due to what I had experienced with him and the anxiety…I was scared. I was petrified of going to work within anywhere close range with Mr. Benoit.” She agreed that she could not and would not work at Tbaytel as long as Mr. Benoit was also there.

[42] Ms. Colistro also agreed that mediation did not occur because of her insistence that Ms. Seeley not be present. She took this position because, according to her, Ms. Seeley had told her that she had been personal friends with Mr. Benoit for eight years when they both worked for a previous employer. In any event, Ms. Colistro acknowledged on cross-examination that the only thing she wanted from mediation was for Tbaytel to terminate Mr. Benoit—she wanted Mr. Benoit gone and would accept nothing less.

[43] On cross-examination, Ms. Colistro acknowledged that she had been very involved in her own litigation, assisting her counsel with document preparation, review and other tasks usually done by litigation assistants. She also agreed that one of her treating psychiatrists, Dr. Whitney, indicated that Ms. Colistro was “preoccupied” with her litigation.

[44] Ms. Colistro confirmed that, as of February 6, 2007, the date that Mr. Diedrich wrote to her confirming Tbaytel’s intention to proceed with the hiring of Mr. Benoit, the only medical information that Tbaytel had as to her condition was Dr. Rao’s February 1, 2007 note which simply stated that Ms. Colistro “will be off work on stress leave until March 1, 2007.”

FORTUNATO COLISTRO

[45] Mr. Colistro is the plaintiff’s spouse. Mr. Colistro described the plaintiff’s demeanour after the January 29, 2007 meeting as “in shambles,” “a wreck,” “upset, angry” and “it was like she went off the deep end.” Mr. Colistro immediately went to the Tbaytel office intending to meet with Mr. Diedrich. He instead met with Mr. Esau and proceeded to tell Mr. Esau that Mr. Benoit had been investigated for sexual harassment of his wife and others in 1995, that he was terminated as a result of the investigation and that “there’s a file out there” that should be retrieved and reviewed.

[46] Upon returning home, Mr. Colistro was told by his wife that they had to return to Tbaytel because Mr. Esau wanted to talk to Ms. Colistro directly. They returned about 6:00 pm that evening and met with Mr. Esau and Ms. Seeley. Mr. Colistro’s intention was to ensure that Tbaytel was aware of what had occurred in 1995 so that they would not move forward with hiring Mr. Benoit. According to Mr. Colistro, he specifically advised Ms. Seeley and Mr. Esau that Mr. Benoit had been investigated for sexual harassment in 1995 and terminated.

[47] Mr. Colistro described his wife’s personality before and after January 2007. Prior to 2007, Mr. Colistro described his wife as a strong, punctual, organized mother and homemaker who loved her job and family. Ms. Colistro was described as happy to go to work and happy when she got home. In the evenings and on weekends, she did all the cooking and housework and attended to the children’s activities.

[48] After January 2007, Mr. Colistro testified it was “like she fell off a cliff and she never got up…she was a mess. No supper. Kids are young. She was like a zombie sometimes, most of the time.” According to Mr. Colistro, his wife no longer did the cooking or housework and withdrew from social activities. He testified that her smoking increased “drastically” and that she developed a drinking problem.

[49] On cross-examination, Mr. Colistro corroborated Ms. Colistro’s testimony that she would not be able to return to work at Tbaytel if they proceeded with the hiring of Mr. Benoit, regardless of any accommodation.

ALAN HJORTH

[50] Mr. Hjorth was the City’s Manager of Employee Relations in 1995 and 1996. He was responsible for labour relations, including discipline and non-union terminations. Mr. Hjorth was involved in determining Mr. Benoit’s severance package in 1996. He testified that at the time he was aware that Mr. Benoit had been the subject of two investigations, one involving a claim of sexual harassment and the other a claim of financial wrongdoing.

[51] According to Mr. Hjorth, the City retained personnel files for terminated employees in their archives. Mr. Hjorth testified that he did not receive any inquiries from Tbaytel about Mr. Benoit after January 29, 2007. Mr. Hjorth did recall being contacted by Ms. Seeley about Mr. Benoit sometime in “early or mid-2006.” He testified that he told her that there had been an investigation into alleged financial wrongdoing but that Mr. Benoit was eventually terminated without cause.

[52] Mr. Hjorth was referred to a January 31, 2007 memo he prepared, entitled “Notes to Myself.” In this memo, Mr. Hjorth recorded his recollection of a “casual confidential” inquiry he received about Mr. Benoit, likely from Ms. Seeley. His notes in the memo about the conversation are consistent with his evidence. His notes indicated he recalled “a charge of sexual harassment being brought forth around the time Mr. Benoit was let go” and that “it’s not something I would have mentioned to (Ms. Seeley) either.”

[53] Mr. Hjorth testified that the City Human Resources Division retained ownership and control of employee personnel files inactive as of January 1, 2005 of past telephone department employees, including that of Mr. Benoit. According to Mr. Hjorth, Tbaytel would have been able to gain access to Mr. Benoit’s file simply by contacting the supervisor of employee services in the City’s Human Resources Division and asking for it.

SHARON HACIO

[54] Ms. Hacio was employed for 42 years with the City telephone department. She was the General Manager from 1986 until she retired in 2002. Ms. Hacio explained that she reported to Mr. Thom, Chief Administrative Officer for the City in 1995. Greg Alexander, General Manager of Human Resources for the City in 1995, was responsible for human resources issues in the telephone department. He also reported to Mr. Thom. Ms. Bates, a City human resources employee in 1995, reported to Mr. Alexander.

[55] Ms. Hacio recalled that Ms. Colistro met with her once in “1995 or late 1994” and reported that Mr. Benoit was sexually harassing her and that she could no longer tolerate his behaviour. Ms. Hacio instructed Ms. Colistro as to the corporate policy for this type of complaint and assisted her in moving forward. Ms. Hacio was contacted soon thereafter by Mr. Thom who advised her that Mr. and Ms. Colistro had met with him, were extremely upset and had reiterated the complaint about Mr. Benoit.

[56] According to Ms. Hacio, in late 1995 Ms. Bates was tasked with conducting an internal investigation of Mr. Benoit and an accounting firm was retained to conduct a forensic audit. She was not involved in the Bates investigation and never saw Ms. Bates’ report. Ms. Hacio identified a December 11, 1995 letter from her to Mr. Benoit in which she advised Mr. Benoit that he was suspended with pay pending the completion of an investigation with respect to sexual harassment, misappropriation of funds and managerial incompetence.

[57] Ms. Hacio identified a January 15, 1996 memorandum regarding Mr. Benoit from Mr. Alexander to herself (the “Alexander memo”). In the Alexander memo, Mr. Alexander advised Ms. Hacio that he had reviewed the results of the Bates investigation. Under the heading “Sexual Harassment,” Mr. Alexander reported the following to Ms. Hacio:

Mr. Benoit has been documented to have made frequent and inappropriate references to women’s breasts in his conversations with them. It is reported that he also uses sexually suggestive language in his daily activities and, as described by one interviewee “acts like he is in a bar.” Given Mr. Benoit’s position of supervisory authority over these employees, this kind of behaviour is unacceptable by any standard.

In summary, the picture painted…is of a control-oriented supervisor who attempts to dominate certain of his subordinates through various forms of harassment and in so doing creates a very stressful work environment which must not be allowed to continue.

[58] On January 16, 1996, Ms. Hacio terminated Mr. Benoit. On instructions she received from the City HR department and the City solicitor, the termination was without cause. Ms. Hacio testified that she advised City council at the time that Mr. Benoit was being terminated because of the sexual harassment complaints, misappropriation of funds and managerial ineffectiveness but that on the advice of the City solicitor the termination was without cause.

[59] Ms. Hacio testified that the documents pertaining to the investigation and termination would have been retained in both a telephone department personnel file maintained by her secretary and a “main human resources file” in the HR department at City Hall.

[60] Ms. Hacio testified that she was contacted by Ms. Seeley sometime in January 2007 and a conference call with Ms. Seeley and Mr. Diedrich was arranged for the following day. According to Ms. Hacio, during that call Ms. Seeley advised that Tbaytel was in the process of hiring Mr. Benoit, wanted her opinion and wanted to know why he was terminated in 1996. Ms. Hacio advised Ms. Seeley and Mr. Diedrich that all of the required information would be in Mr. Benoit’s personnel file and that they should review this file. Ms. Seeley and Mr. Diedrich apparently persisted in questioning Ms. Hacio, who eventually told them that Mr. Benoit was terminated for sexual harassment and that “it would be a bad move to rehire him.” Ms. Hacio testified that Mr. Diedrich responded by indicating that “they’ll do what they want.”

ROSALIE EVANS

[61] Ms. Evans was the City solicitor between 2003 and 2012. Toward the end of January 2007, Ms. Evans was contacted by Ms. Seeley and Mr. Diedrich. She then attended the City archives on two occasions to examine Mr. Benoit’s personnel file and Mr. Thom’s 1995/1996 files pertaining to the telephone department. She did not copy any documents from these files.

[62] On January 31, 2007, Ms. Evans prepared a memo to Ms. Seeley and Mr. Diedrich. She did not attach any documents to this memo. Ms. Evans confirmed that an unsigned, handwritten, six page memo entitled Linda Colistro was present in Mr. Thom’s files when she reviewed them in 2007. All counsel have stipulated that these are Mr. Thom’s notes from 1995/1996.

[63] Ms. Evans then identified the following as documents she found in 2007 in Mr. Thom’s 1995/1996 file:

1. a document entitled “Thunder Bay Human Resources Department Personnel Changes Notification”, dated December 11, 1995, signed by Ms. Hacio and Mr. Hjorth, which had attached to it Ms. Hacio’s December 11, 1995 letter to Mr. Benoit;

2. a 14 page typed document entitled “S. Benoit Complaint”, identified by Ms. Evans as Ms. Bates’ report on the results of her 1995/1996 investigation;

3. a copy of the Alexander memo; and

4. a copy of Ms. Hacio’s January 16, 1996, termination letter to Mr. Benoit.

[64] Ms. Evans confirmed that she met with Ms. Seeley and Mr. Diedrich on or about January 31, 2007, after she had attended the City archives two times and reviewed the above documents. She was not asked by Tbaytel for any further input in regard to this matter after this meeting.

CHRISTINE BATES

[65] In 1995, Ms. Bates was employed by the City as the Manager of Employment Services. She reported to Mr. Alexander. She identified the December 29, 1995, document entitled “S. Benoit Complaint” as a “summary” of the results of her investigation pertaining to complaints made against Mr. Benoit. Ms. Bates testified that she did not complete her investigation because Mr. Benoit was terminated prior to her being able to do so. She was unable to recall if she provided this summary to Mr. Alexander, Mr. Thom or Ms. Hacio.

PETER DIEDRICH

[66] Mr. Diedrich was examined prior to trial pursuant to Rule 36.01(2). His evidence was tendered as part of the plaintiff’s case.

[67] Mr. Diedrich was hired as the President and CEO of Tbaytel in September 2006, and was thereafter responsible for the day to day operations of the company. According to Mr. Diedrich, in late 2006 or early 2007, Ms. Seeley suggested to him that they consider Mr. Benoit for the position of Vice-President Business Consumer Markets. At this point, Mr. Diedrich knew only that Mr. Benoit had previously worked for Bearskin Airlines in a marketing position and that he had also worked for the Yellow Pages Group in Thunder Bay.

[68] Upon interviewing Mr. Benoit, Mr. Diedrich also learned that he had previously worked for and been terminated by the City telephone department. Mr. Diedrich testified that Mr. Benoit advised him that his termination was “not for cause”. Mr. Diedrich did not ask him to elaborate. By letter dated January 12, 2007, Tbaytel offered Mr. Benoit the position of Vice-President Business Consumer Markets, effective February 19, 2007, subject to a 12 month probationary period.

[69] Mr. Diedrich testified that as of January 12, 2007, he was not aware of why Mr. Benoit had been terminated by the City in 1996. According to Mr. Diedrich, in due course he did become aware of why Mr. Benoit had previously been terminated.

[70] On the day after the January 29, 2007, announcement of Mr. Benoit’s hiring, Mr. Diedrich testified that “there was quite a bit of consternation in the ranks of the employees because of the reaction of the plaintiff to the hiring.” According to Mr. Diedrich, “within a week” of January 29, 2007, he and Ms. Seeley attended the City archives “two or three times” with Ms. Evans so that he and Ms. Seeley could “understand the circumstances of Mr. Benoit’s termination…”

[71] Mr. Diedrich acknowledged that he personally reviewed relevant documents while at the archives but was unable to recall exactly what he had seen. He did acknowledge, as a result of his attendance at the archives, “recognizing” the Alexander memo to Ms. Hacio. Mr. Diedrich testified that he understood the contents of this memo as having been the grounds for Mr. Benoit’s 1996 termination.

[72] The Alexander memo was entered into evidence at trial. In this document, Mr. Alexander recorded that he had reviewed documentation generated as a result of the interviews conducted by his staff and identified four issues; sexual harassment, workplace harassment, managerial effectiveness and insubordination. Under the heading sexual harassment, Mr. Alexander noted as follows:

Mr. Benoit has been documented to have made frequent and inappropriate references to women’s breasts in his conversations with them. It is reported that he also uses sexually suggestive language in his daily activities…given Mr. Benoit’s position of supervisory authority over these employees, this kind of behaviour is unacceptable by any standard.

[73] Mr. Diedrich was aware, either on January 29 or 30, 2007, that the plaintiff had very strong objections to Tbaytel hiring Mr. Benoit. He testified that it was on January 30, 2007, that he first became aware that Ms. Colistro was the complainant in the 1995 sexual harassment complaints against Mr. Benoit.

[74] Mr. Diedrich was referred to his February 6, 2007, letter to the plaintiff, in which he stated that Ms. Colistro’s “concerns” about Benoit were brought to his attention and that Tbaytel “proceeded with our own due diligence.” Asked about this process, Mr. Benoit testified that between January 30 and February 6, 2007, in addition to his attendance at the archives, his review of documents there and consultation with legal counsel for Tbaytel, he also recalled speaking with Ms. Hacio about Mr. Benoit. When asked if there was any discussion with Ms. Hacio about “the sexual harassment,” Mr. Diedrich testified that there “probably” was.

[75] When referred to the Alexander memo which he confirmed he was familiar with, Mr. Diedrich testified that this memo was “probably” among the documents that he reviewed at the archives. He acknowledged that he made no attempt to contact Mr. Alexander “because I spoke to Sharon Hacio. That was enough.” Mr. Diedrich agreed that he did not discuss the allegations directly with Mr. Benoit. Mr. Diedrich agreed with the suggestion that, as of February 6, 2007, Tbaytel had completed their “due diligence” into the circumstances of Mr. Benoit’s 1996 termination and had made the final decision to proceed with the hiring of Mr. Benoit, notwithstanding his knowledge of what had occurred in 1995 and the plaintiff’s objections.

[76] Mr. Diedrich testified that Tbaytel offered to accommodate Ms. Colistro by having her assume the position of executive assistant to the Vice-President of Field Operations which would place her in a different, but essentially adjacent, building to the one in which Mr. Benoit would be working. According to Mr. Diedrich, this would not be a demotion and would not result in a lower salary or diminished benefits or pension for Ms. Colistro.

[77] Diedrich denied being aware that proceeding with the hiring of Benoit would cause the plaintiff mental distress.

STEVE BENOIT

[78] Mr. Benoit testified that he was contacted by Ms. Seeley on several occasions in 2006 about his possible employment with Tbaytel. They eventually met late that year at which time Ms. Seeley advised Mr. Benoit he should meet with Mr. Diedrich, the newly appointed President and CEO of Tbaytel. Mr. Benoit then met with Mr. Diedrich two or three times in December 2006 and in January 2007. On January 12, 2007, Mr. Diedrich offered Mr. Benoit the position of Vice-President Business Consumer Markets with Tbaytel.

[79] Mr. Benoit testified that he informed Ms. Seeley and Mr. Diedrich that he had been terminated by the City telephone department in 1996 following his suspension as a result of allegations of sexual harassment, misappropriation of company funds and managerial incompetence. Mr. Benoit also told Mr. Diedrich that he did not know who the complainant was in 1996. Mr. Benoit thereafter received an offer of employment by letter dated January 12, 2007, which he accepted on the same day. It was agreed that he was to be the Vice-President Business Consumer Markets starting February 19, 2007.

[80] Between January 12 and February 19, 2007, Mr. Benoit was contacted by Ms. Seeley and told that concerns had been raised about him being hired by Tbaytel. The week before his start date, Mr. Benoit was asked to meet with Mr. Diedrich which he did. According to Mr. Benoit, at this meeting Mr. Diedrich stated to him that what was done to him in 1996 was “a fucking travesty” and that there was no evidence of sexual harassment. Mr. Benoit testified that he was never asked to provide his version of what may or may not have happened in regard to the sexual harassment complaints in 1995. Mr. Benoit only became aware that Ms. Colistro was one of the 1995 complainants when he was served with the Statement of Claim in this action in 2008.

GREG ALEXANDER

[81] Mr. Alexander was the General Manager of Human Resources for the City in 1995 and 1996. He instructed Ms. Bates to investigate all allegations pertaining to Mr. Benoit. Ms. Bates did so and provided a report to Mr. Alexander. Mr. Alexander in turn prepared his January 15, 1996 memo to Ms. Hacio.

[82] Mr. Alexander agreed that the results of the City’s 1995/1996 investigation, as reflected in his memo to Ms. Hacio, resulted in Benoit’s 1996 termination. Mr. Alexander agreed that “part of the reason” that Mr. Benoit was terminated in 1996 was a finding by the City that he had engaged in sexual harassment of telephone department employees.

DR. B. MOAZZAMI

[83] Dr. Moazzami is a professor of economics at Lakehead University in Thunder Bay. He testified as the plaintiff’s economic loss witness. Dr. Moazzami was qualified as an expert and allowed to provide opinion evidence in regard to the plaintiff’s past and future economic loss.

[84] Dr. Moazzami calculated the plaintiff’s past economic loss from January 29, 2007 to April 30, 2016 using her base earnings for 2007 and increasing her annual earnings by 4.3% per year, being the Statistics Canada average wage increase for executive assistants in northwestern Ontario from 2005 to 2011.

[85] Dr. Moazzami rejected Dr. Hyatt’s (Tbaytel’s economic loss expert) use of a 2% annual wage increase to calculate the plaintiff’s economic loss. Dr. Moazzami calculated the plaintiff’s increase in total earnings between 2003 and 2006 to have been 12.3% per year, “based on actual T4 numbers.” He therefore felt the use of the northwestern Ontario average wage increase for administrative assistants was more reasonable.

[86] According to Dr. Moazzami, the plaintiff’s gross earnings at Tbaytel for the period January 29, 2007, to April 30, 2016, would have been $661,601 without any deduction for collateral benefits received by the plaintiff. Dr. Moazzami’s calculation did not account for the fact that the plaintiff’s wages from Tbaytel continued from January 29, 2007 to May 17, 2007.

[87] Dr. Moazzami next calculated the past loss of value of the plaintiff’s housekeeping services from January 29, 2007 to April 30, 2016. Dr. Moazzami did so by using Statistics Canada data to determine the average number of hours a woman of the plaintiff’s age working full time would spend on housekeeping and multiplying that by the average hourly wage for housekeepers in northwestern Ontario—two hours per day at $14.00 per hour from January 30, 2007 to April 30, 2016, resulting in past lost value of housekeeping services of $129,067. Dr. Moazzami did not opine on the plaintiff’s past loss of housekeeping capacity.

[88] Dr. Moazzami then calculated the present value of the plaintiff’s future earnings losses from May 1, 2016, again using the average salary increase of employees in the same position as the plaintiff in northwestern Ontario (4.3 %) and assuming the plaintiff did not re-enter the labour force and retired at age 55, 60 or 65. According to Dr. Moazzami, the present value of the plaintiff’s future earnings losses are:

1. to age 55 - $519,891;

2. to age 60 - $943,990;

3. to age 65 - $1,330,287.

[89] Dr. Moazzami did not opine on the plaintiff’s anticipated retirement age but was dismissive of Tbaytel’s instruction to Dr. Hyatt to calculate economic loss assuming that Ms. Colistro would have retired at age 55, but for the incident.

[90] Dr. Moazzami calculated the present value of the plaintiff’s future collateral benefits (CPP disability and LTD benefits) as follows:

1. To age 55 - $230,522;

2. To age 60 - $405,710;

3. To age 65 - $562,013.

[91] Dr. Moazzami testified that, in his opinion, “generally these benefits are deducted” from future economic loss calculations.

[92] Dr. Moazzami was also asked to calculate the present value of the plaintiff’s future earnings loss assuming the plaintiff returned to work on September 1, 2016. Dr. Moazzami did so and assumed Ms. Colistro would work 35 hours per week, earn $20.10 per hour and receive no collateral benefits after September 1, 2016. According to Dr. Moazzami, the present values of the plaintiff’s future earnings losses after September 1, 2016, based on these assumptions are:

1. To age 55 - $337,587;

2. To age 60 - $604,212;

3. To age 65 - $847,078.

[93] There was nothing in the record to support Dr. Moazzami’s assumption as to Ms. Colistro’s hourly wage if she re-entered the labour force.

[94] Dr. Moazzami calculated the present value of the plaintiff’s future loss of value of housekeeping services to age 80 using the same assumptions as for past loss of housekeeping value, without opining on what the plaintiff’s future loss of housekeeping capacity may be. Dr. Moazzami calculated these losses at $416,817.

[95] On cross-examination, Dr. Moazzami acknowledged that the plaintiff had never actually hired a housekeeper to assist her with housekeeping duties. He maintained that she had nonetheless suffered some loss based on foregone production.

[96] Dr. Moazzami acknowledged that Tbaytel’s remuneration scheme in 2007 included, distinct from and in addition to annual base salary, annual performance bonuses calculated based on an employee’s individual performance rating and company performance. Dr. Moazzami did review Tbaytel’s projection of the plaintiff’s post 2007 income on which Dr. Hyatt based his economic loss calculations. Dr. Moazzami agreed that evidence as to a specific salary structure at Tbaytel would be the best evidence as to future anticipated wages for economic loss calculations in most circumstances. Dr. Moazzami maintained, however, that this projection was inconsistent with the plaintiff’s actual income history between 2003 and 2006 and with average northwestern Ontario earnings.

[97] Dr. Moazzami therefore rejected Dr. Hyatt’s use of Tbaytel’s income projection in favour of the average wage increase for executive assistants in northwestern Ontario between 2005 and 2011. However, Dr. Moazzami interpreted the plaintiff’s 12.3% increase in total annual earnings (including bonuses) between 2003 and 2006 as an increase in her base salary based on merit and performance.

[98] Dr. Moazzami agreed that the plaintiff has received an OMERS PCDW as a result of disability and that she has been accruing full pension credited service during her absence from work at Tbaytel. Dr. Moazzami opined that Ms. Colistro’s OMERS PCDW should not be deducted because they are “sort of like a fringe benefit.”

[99] On re-examination, Dr. Moazzami testified that the plaintiff would qualify for an unreduced OMERS pension at age 55. If she were to retire at age 55, Ms. Colistro would receive pension income of $33,481.15 from age 55 to 65 and $23,459.11 pension income for life from age 65, the latter pension income taking into account CPP benefits beginning at age 65.

DR. J. SULLIVAN

[100] Dr. Sullivan has been a Registered Clinical Psychologist with the College of Psychologists of Ontario since 2004. The plaintiff filed three medical reports prepared by Dr. Sullivan, dated July 18, 2007, September 3, 2010, and January 16, 2015, pursuant to section 52 of the Evidence Act, R.S.O. 1990, C E.23. Dr. Sullivan was then called for the purpose of cross-examination.

Psychological Assessment Report July 18, 2007:

[101] Ms. Colistro was seen by Dr. Sullivan on June 28 and July 3, 2007, for the purposes of this assessment. Dr. Sullivan found Ms. Colistro to be experiencing “clinically elevated levels of anxiety and significant depressive symptomatology that appear to be directly related to her involvement in the workplace sexual harassment from 1994-1995, and more recently exacerbated by the announcement of her former manager being rehired.” Dr. Sullivan diagnosed the plaintiff as suffering from “PTSD, chronic” and “Major Depressive Disorder, Single Episode, Severe.”

[102] Based on the findings of her 2007 assessment, it was Dr. Sullivan’s opinion that the plaintiff was unable to return to work at that time due to the “debilitating symptoms of anxiety and depression.” Dr. Sullivan further opined that, while Ms. Colistro was receiving therapy for PTSD, “it would be counterproductive for her to be in a workplace situation in which she would likely come in contact with her former supervisor (Benoit).”

Progress Report to Ms. S. Carter, Functional Rehabilitation Specialist, Manulife Financial September 3, 2010:

[103] This report, prepared for the purpose of Manulife approving further treatment for the plaintiff, summarized Ms. Colistro’s progress over the course of 12 psychotherapy sessions between January 25, 2010 and June 28, 2010. Dr. Sullivan reported that Ms. Colistro had experienced “modest yet progressive gains in managing her symptoms.” However, Dr. Sullivan further reported that the plaintiff “continues to struggle with persistent feelings of helplessness, powerlessness and sadness; irritability, sleep difficulties, loss of interest in previously enjoyed activities and concentration focus problems…Ms. Colistro continues to require anti-depressant anxiolytic and sleep medication to manage her symptoms of depression, panic and anxiety.”

[104] According to Dr. Sullivan, Ms. Colistro was unable to perform routine daily activities due to fatigue, poor concentration and lack of focus. The plaintiff’s prognosis for a successful return to work at the time of the report was described as “very guarded.”

Psychological Report January 16, 2015:

[105] The opinions of Dr. Sullivan as provided in this report are expressly based on Ms. Colistro’s self-reporting, psychological assessment data from assessments done on July 18, 2007 and February 19, 2010 and the case notes of Karen Dahl, psychometrist, from January 25, 2010 to June 14, 2010.

[106] Dr. Sullivan reported that Ms. Colistro’s symptoms in 2010 were “highly consistent” with those found in 2007. They included Major Depression and PTSD, in partial remission. Dr. Sullivan’s primary diagnosis was PTSD, with secondary/co-morbid depression. Dr. Sullivan opined that the most salient complicating factor impacting Ms. Colistro’s condition and recovery was this litigation with Tbaytel. Dr. Sullivan expressly noted that she was unable to opine on Ms. Colistro’s current condition as her last psychological assessment was in January 2010. Dr. Sullivan did state that she did not believe that the plaintiff required any workplace accommodations, “aside from not working in the same building as her former supervisor.”

[107] Dr. Sullivan was referred to a summarizing comment in her July 18, 2007, Psychological Assessment Report where she opined that it would be “counterproductive” for the plaintiff, while receiving therapy for PTSD, to be in a workplace situation where she would likely come into contact with her former supervisor. Dr. Sullivan explained that ongoing exposure to this sort of a “trigger” would be problematic but that if she was not in contact with this person “we would assume that she would be able to participate in therapy and, depending on the symptom severity, return to work.”

[108] Dr. Sullivan confirmed that the purpose of the September 3, 2010 progress report to Ms. Carter, Rehabilitation Specialist with Manulife, was to request that Manulife agree to fund further counselling for the plaintiff. Dr. Sullivan also confirmed that this report noted that “Ms. Colistro has experienced modest yet progressive gains in managing her symptoms…with an increased frequency of sessions during May and June (of 2010) a benefit from psychotherapy was noted…there have been notable improvements in her activity level with increased ability to socialize; attendance at a wedding and anniversary away with spouse, provide transportation for her son and daughter to attend activities and some household errands would take her out of the house…”.

[109] Dr. Sullivan was next referred to her January 16, 2015 Psychological Evaluation Report. Dr. Sullivan acknowledged that she had not met with the plaintiff after June 2010, and that any information used to prepare this report was dated 2010 or earlier, but for the notes of the plaintiff’s family doctor, which included 2012 notations. Dr. Sullivan agreed that this report did not address the current condition of the plaintiff.

[110] In re-examination, Dr. Sullivan confirmed that assisting with and working on legal files pertaining to this lawsuit could be therapeutic in treating PTSD.

TBAYTEL’S CASE

KENNETH ESAU

[111] Mr. Esau was first hired by the City telephone department as the manager of installation and repair in 2001. He was appointed acting CEO and President of Tbaytel in July 2005 and served in this position until September 2006 when Mr. Diedrich was hired. Ms. Colistro worked as Mr. Esau’s administrative assistant “on and off” beginning in 2002. She was working as his administrative assistant in January 2007.

[112] Mr. Esau recalled receiving emails from Ms. Colistro on January 29, January 30 and February 1, 2007, in which Ms. Colistro advised Mr. Esau that she was feeling unwell and would not be attending work. In the February 1, 2007 email, Ms. Colistro advised Mr. Esau that she was “on the verge of having a nervous breakdown. I am not eating, sleeping and I am vomiting. I have no energy at all. I can’t even get my kids ready for school in the morning.” Mr. Esau testified that he had no reason to disbelieve what Ms. Colistro said. He was “concerned” for Ms. Colistro and forwarded the email to Ms. Seeley. Ms. Colistro emailed Mr. Esau on February 2, 2007, again advising him that she would not be able to report to work that day. Mr. Esau again discussed this with Ms. Seeley.

[113] Mr. Esau testified that Mr. Birch was the Vice-President of Field Operations and reported to him during the time that he was the Executive Vice-President of Operations at Tbaytel. According to Mr. Esau, if Ms. Colistro had assumed the position of executive assistant to Mr. Birch in January 2007, her duties, responsibilities, salary, benefits and pension status would have been the same as when she was his administrative assistant. He would not have considered her move to this position as a demotion. He also testified that Mr. Birch worked out of a different building than where Mr. Benoit would have worked.

[114] In cross-examination, Mr. Esau was referred to a series of Tbaytel employee performance appraisals. Mr. Esau testified that he “had no issue with Linda’s performance.” He agreed that he had personally rated her performance as “superior” for the years 2003, 2005 and 2006.

[115] Mr. Esau acknowledged that he was aware, as a result of his January 29, 2007 meeting with the Colistros and Ms. Seeley, that Ms. Colistro’s position was that she had been previously harassed by Mr. Benoit and that both of the Colistros were “very upset” with Mr. Benoit being hired by Tbaytel. Mr. Esau testified that he left it to Ms. Seeley, as VP of HR, to take whatever further steps were required in the circumstances.

LOIS-ANN BENDER

[116] Ms. Bender was the executive administrative assistant to Mr. Diedrich in the fall of 2006. Ms. Bender left Tbaytel in November 2006 and was terminated in December 2006. She described herself as a friend of Ms. Colistro’s at the time.

[117] According to Ms. Bender, after Ms. Colistro left Tbaytel on January 29, 2007, the two talked on the phone “many” times, met for coffee and visited at Ms. Colistro’s home “a couple of times.” Ms. Bender testified that Ms. Colistro was very upset that Mr. Benoit had been hired. Ms. Bender further testified that during one of their telephone conversations, Ms. Colistro told her that she had copied Mr. Benoit’s personnel file one day when she was filling in for Ms. Bender, “because you never know if you’re gonna need it.” According to Ms. Bender, Ms. Colistro acknowledged that she should not have done so but that she would just say that “someone dropped it on her doorstep”.

[118] Ms. Bender was apparently involved in litigation with Tbaytel as a result of her 2006 termination. She testified that Ms. Colistro suggested that she get her doctor to prescribe medication for her “so it would look good” in her case against Tbaytel. Ms. Bender further testified that Ms. Colistro was “very angry” with Tbaytel, was going to be suing them and wanted to “make them pay”. Ms. Bender testified that the two are no longer friends because Ms. Colistro would not testify on her behalf in her litigation against Tbaytel.

[119] On cross-examination, Ms. Bender clarified that Ms. Colistro had apparently copied Mr. Benoit’s file from the personnel files kept in her office when she was the assistant to Ms. Hacio, General Manager of the City phone department, after the 1995/1996 investigation and prior to the file being archived.

CHRISTINE SEELEY

[120] Ms. Seeley was hired as HR Consultant and became a member of Tbaytel’s senior management team in 2003. She became VP of HR under Mr. Diedrich. She testified that in the fall of 2006, she suggested to Mr. Diedrich that Tbaytel consider Mr. Benoit for the soon to be vacant position of Vice-President Business Consumer Markets and Development.

[121] Ms. Seeley had previously worked with Mr. Benoit at Bearskin Airlines and was aware that he had been terminated from the City telephone department in the mid 1990s. According to Ms. Seeley, in 2004 or 2005, she had discussed Mr. Benoit’s termination with Mr. Hjorth while speaking about another employee. Ms. Seeley testified that she was advised by Mr. Hjorth that Mr. Benoit had not been terminated for cause in 1996.

[122] In due course, Mr. Diedrich met with Mr. Benoit and then informed Ms. Seeley that he was interested in hiring him. According to Ms. Seeley, her memory at this point “gets fuzzy.” She testified that “I believe that Peter (Diedrich) decided to follow up and went to the City to check up on what was actually on the record…and I may have called (Mr. Hjorth)…I know the answer…whether it was from (Mr. Hjorth) himself or from the HR department is that there was nothing in the files there at the City archives or at the annex.” Ms. Seeley also testified that she discussed the issue directly with Mr. Benoit who advised her that his termination had been without cause, that he did not know who the complainant was and that he had not been interviewed at the time.

[123] Ms. Seeley subsequently prepared a formal offer of employment for Mr. Benoit on instructions from Mr. Diedrich. The offer was dated January 12, 2007, and signed by Mr. Benoit on January 15, 2007. Mr. Benoit’s employment with Tbaytel was expressly made “effective” February 19, 2007, and was subject to a 12 month probationary period.

[124] Ms. Seeley testified as to her recollection of the January 29, 2007 meeting with Mr. Esau and the Colistros. According to Ms. Seeley, Ms. Colistro stated that “you cannot hire Steve Benoit back. How could you do this to me?”. Ms. Seeley testified that she had no idea what Ms. Colistro was talking about. Ms. Colistro was very distraught and advised Ms. Seeley that “it’s all in the files.” Ms. Seeley testified that she assured Ms. Colistro that Tbaytel would investigate further “to get to the bottom of this.”

[125] Ms. Seeley recalled having a telephone conversation about Mr. Benoit with Ms. Hacio, with Mr. Diedrich participating, on January 29, 2007, at some point in time after the announcement of Mr. Benoit’s hiring. According to Ms. Seeley, Ms. Hacio was asked if Mr. Benoit had been terminated for cause and she replied that he had not.

[126] Ms. Seeley testified that she advised Mr. Diedrich of the meeting with the Colistros and then, in due course, contacted Ms. Evans, the City solicitor, asking her to “find whatever there is to find…and tell us what if anything there was in terms of a complaint specific to Linda Colistro.” According to Ms. Seeley, Ms. Evans’ report to her stated that Ms. Bates had conducted interviews “and that there was no specific harassment complaint that she could find.”

[127] In addressing the issue of accommodating Ms. Colistro, Ms. Seeley testified that Ms. Colistro was a valued employee and Tbaytel was “ready to do just about anything within reason to limit any interaction that Linda would have with Mr. Benoit…we can’t…go back and correct what happened 11 years ago…but having said that her feelings are real and we wanted to respect that and, and have Linda continue working for Tbaytel.”

[128] Ms. Seeley testified that Ms. Colistro would not have been subject to any difference in pay, benefits, pension or general job duties or expectations had she become executive assistant to Mr. Birch, Vice-President of Field Operations and that such a change would not have been a demotion. She testified that Ms. Colistro’s contact with Mr. Benoit in this position would be minimal, particularly given that Ms. Colistro would no longer have to provide relief for the executive administrative assistant to the CEO.

[129] Ms. Seeley testified that a 2006/2007 compensation review resulted in significant salary increases for all Tbaytel employees. For Ms. Colistro, this resulted in a salary increase from $25.95 per hour in November 2006 to $30.30 per hour in December 2007.

[130] In cross-examination, Ms. Seeley acknowledged that she was aware in December 2006 that there were allegations of sexual harassment and managerial incompetence against Mr. Benoit at the time of his 1996 termination. She testified that she told Mr. Diedrich “everything I knew…plus any and all rumours that I’d heard from other employees.” She agreed that, as a result, both she and Mr. Diedrich were aware that there was some risk in considering Mr. Benoit as an employee because of this history.

[131] In reference to the January 29, 2007 meeting with the Colistros, Ms. Seeley testified that Ms. Colistro told her that “she was harassed” and that “she made a complaint” but that “she did not and would not give me any detail as to what that meant and what the details of it were.” Ms. Seeley then, subsequent to speaking to Mr. Diedrich about it, asked both the City solicitor and outside counsel to look into the matter—“both came back with no specific allegation made by Linda Colistro. That was the answer that I received.”

[132] Ms. Seeley further testified that “I don’t have a specific procedure to re-investigate an allegation of sexual harassment from (11) years ago. I believe that the steps that we took were the most prudent steps that we could under those circumstances…I’ve never doubted that something did occur and we were taking steps to accommodate Linda to ensure that nothing of that nature that she alleges happened ever happens again.”

[133] Ms. Seeley agreed that she was aware, prior to the January 29, 2007 meeting with the Colistros that Mr. Benoit had been terminated by the City in 1996 and that Mr. Benoit had disclosed to her that he had been the subject of an investigation or complaint about sexual harassment at that time. Ms. Seeley acknowledged, as a result of this meeting, that she understood Ms. Colistro was a complainant against Benoit in 1995/1996.

[134] Ms. Seeley agreed that some of the City telephone department employees interviewed by Ms. Bates still worked for Tbaytel in January 2007. Neither she nor anyone else at Tbaytel sought out any of these employees to inquire about the events of 1995/1996. Ms. Seeley did not speak with either Ms. Colistro or Mr. Benoit after January 29, 2007.

[135] Ms. Seeley testified that she attempted to contact Ms. Colistro “to check on her” after January 29, 2007, but was told that she did not want to speak with her. She did not, as part of Tbaytel’s investigative process, formally ask Ms. Colistro to attend and provide a statement detailing her complaints about Mr. Benoit, either before or after concluding there were no specific complaints in the archived City files.

[136] Ms. Seeley recalled the telephone conversation that she and Mr. Diedrich had with Ms. Hacio concerning Mr. Benoit. She could not recall if it took place before or after the offer of employment was made to Mr. Benoit. Ms. Seeley agreed that they would have taken Ms. Hacio’s comments into consideration. Ms. Seeley did not recall Ms. Hacio stating that Mr. Benoit had been terminated for sexual harassment nor did she recall Ms. Hacio advising against hiring Mr. Benoit. She did recall Ms. Hacio saying Mr. Benoit’s termination was not for cause. The comment that Ms. Hacio attributed to Mr. Diedrich—that Tbaytel would do what they want—was, according to Ms. Seeley, in reference to a separate employment issue.

[137] Ms. Seeley denied being aware of both the contents of the Alexander memo to Ms. Hacio and of Mr. Thom’s November 21, 1995 notes prior to February 19, 2007. She did recall seeing excerpts from the 1995/1996 investigation as a result of what she referred to as “the extensive investigation” done by the City solicitor and outside counsel. It was her evidence that, at the end of the day, “there was no evidence of a specific person with a specific complaint for us to follow up on.” Ms. Seeley understood from these reports that “the interviews were very sketchy” and that Mr. Benoit himself had not been interviewed.

[138] Ms. Seeley was referred to Mr. Diedrich’s February 6, 2007 letter to Ms. Colistro. She was aware of the letter and agreed that she may very well have prepared it. Ms. Seeley agreed that as of the date of this letter, Tbaytel had completed their evaluation of the issues raised by Ms. Colistro and had decided to proceed with the hiring of Mr. Benoit.

[139] Ms. Seeley agreed that Mr. Esau copied her on Ms. Colistro’s January 29, 30 and February 1, 2007 emails and that she was aware that Ms. Colistro had not returned to work after the January 29, 2007 announcement of Mr. Benoit’s hiring. Ms. Seeley specifically recalled the February 1, 2007 email wherein Ms. Colistro advised Mr. Esau that she was not eating or sleeping, was vomiting and on the verge of a nervous breakdown.

[140] Ms. Seeley also admitted knowledge of Ms. Colistro’s February 12, 2007 letter to Mr. Birch in his capacity as the co-chair of the Tbaytel Health and Safety committee wherein Ms. Colistro stated that Tbaytel’s hiring of Mr. Benoit would create an “unhealthy, unsafe working environment” given her knowledge of Benoit’s past behaviour, including “sexual slanders” toward her and others.

[141] Ms. Seeley agreed that it would have been possible for Tbaytel to abort the hiring of Mr. Benoit prior to his February 19, 2007 start date. Ms. Seeley agreed that Ms. Colistro had “legitimate complaints” but felt that Tbaytel could hire Mr. Benoit and accommodate Ms. Colistro at the same time.

[142] Ms. Seeley acknowledged that Tbaytel did not provide an accommodation proposal that guaranteed Ms. Colistro would have no contact, direct or indirect, with Mr. Benoit. However, she further testified that if mediation had been allowed to proceed, she believed that accommodation could have been successfully achieved “by making the contact very, very minimal to the point of accidental.”

LISON MCAULEY

[143] Ms. McAuley was a payroll and benefits officer at Tbaytel between 2006 and 2008. At the time of trial, she was the Director of HR. Ms. McAuley identified an undated document that she drafted and which was produced for the purpose of this litigation which provided Tbaytel’s estimate of Ms. Colistro’s base salary and Short Term Incentive (bonus) payments for the years 2008 to 2015.

[144] For the purposes of this estimate, Ms. McAuley increased Ms. Colistro’s base salary annually by the average pay increase (2.03%) for administrative assistant positions for the years 2008 to 2015. Ms. McAuley confirmed that Ms. Colistro has continued to receive service credits and an employee PCDW in regard to the OMERS pension plan.

[145] Ms. McAuley also commented on Ms. Colistro’s wage increases between 2006 and 2007. According to this witness, the significant hourly wage increases for Tbaytel executive assistants during this period of time were the result of a company-wide compensation review to bring wages up to market level.

[146] On cross-examination, Ms. McAuley was referred to a February 7, 2007 Short Term Disability Claim for Ms. Colistro that she completed on behalf of Tbaytel. This document noted, “stress due to circumstances at work” as the reason for Ms. Colistro’s absence from work. Ms. McAuley testified that she understood this stress to have been caused by the hiring of Mr. Benoit. She agreed that Ms. Seeley had given her Dr. Rao’s February 1, 2007 note prior to her preparation of this report.

[147] Ms. McAuley acknowledged preparing a Workplace Safety and Insurance Board (“WSIB”) Employer’s Report for Ms. Colistro on March 19, 2007. She confirmed that she indicated in this report that Ms. Colistro suffered an “accident/illness,” which was a “sudden specific event/occurrence” on January 29, 2007, referring to the announcement of Mr. Benoit’s hiring. Ms. McAuley testified that the only medical documents pertaining to Ms. Colistro that she had seen between January 30 and March 19, 2007, was Dr. Rao’s February 1, 2007 note. This was the only medical information about the plaintiff that she ever saw.

[148] This same WSIB Employer’s Report prepared by Ms. McAuley included the following explanation as the cause of Ms. Colistro’s “accident/illness”:

During an organizational announcement, the employer announced the recruitment of a new Departmental VP. That same day, after the announcement, the employee informed the employer that this individual, who was also employed with Tbaytel in 1995, was accused of sexual harassment and was terminated due to such. The employee claimed that those past events had caused her extreme stress and will do so again.

[149] Ms. McAuley confirmed that this information was received from Ms. Seeley. She did not state when it was received.

[150] On re-examination, Ms. McAuley testified that Tbaytel employees typically retire upon achieving their “90 factor.”

DR. D. HYATT

[151] Dr. Hyatt is a professor of Business Economics at the Rotman School of Management at the University of Toronto. He was qualified as an expert and provided opinion evidence on the plaintiff’s past and future economic loss.

[152] Dr. Hyatt testified that his calculations were premised on Tbaytel’s projections as to Ms. Colistro’s employment income from 2007 to 2016, as testified to by Ms. McAuley, and an assumption that she would have retired at age 55, but for the incident in question.

[153] Dr. Hyatt opined that the plaintiff’s past loss of earnings from January 30, 2007 to April 30, 2016 were $592,157.00. Dr. Hyatt arrived at this figure strictly in accordance with Tbaytel’s projection of the plaintiff’s total income from January 30, 2007 to April 30, 2016, including salary and Short Term Incentive.

[154] Dr. Hyatt agreed with Dr. Moazzami’s evidence that the plaintiff received long term disability benefits and CPP disability benefits to April 30, 2016, in the amounts of $235,722.00 and $96,071.00 respectively. If these benefit payments are deducted from the past earnings loss figure, the plaintiff’s net past earnings loss is $260,364.00, in Dr. Hyatt’s opinion.

[155] Dr. Hyatt also noted that the plaintiff received $19,408.00 as “salary continuance benefits” between January 30, 2007, and May 17, 2007. In his opinion, these benefits should be deducted in a past earnings loss calculation. When deducted, the net figure for past earnings loss becomes $240,956.00.

[156] Dr. Hyatt further testified that the plaintiff’s OMERS PCDW during the same time frame was $47,237.00. The past earnings loss, net of this figure, then becomes $193,719.00, according to Dr. Hyatt. Dr. Hyatt testified that he has never “seen an instance in 22 years of doing this” where pension contribution waiver amounts were not deducted in economic loss calculations.

[157] Moving on to future loss of earnings and assuming that Ms. Colistro would have retired at age 55 but for the incident, Dr. Hyatt testified that the present value of the plaintiff’s future earnings loss to age 55 was $419,987. Dr. Hyatt arrived at this figure by increasing Ms. Colistro’s estimated future annual earnings by 2% per year.

[158] According to Dr. Hyatt, if one were to assume that the plaintiff would continue to receive LTD and CPP disability benefits to age 65, those benefits would total $562,013. Future earnings loss of $419,987 net of collateral benefits received to age 65 actually results in a “gain” of $142,026, according to Dr. Hyatt. If the plaintiff’s waived pension contributions to age 55 ($38,745) were also factored in, the “gain” becomes $180,771, according to Dr. Hyatt.

[159] Dr. Hyatt explained that his future earnings loss estimate assumed a retirement age of 55, without incident estimated earnings of $419,987 to age 55 and the receipt of collateral benefits until age 65. In this scenario, the value of the collateral benefits received exceeds the value of the future earnings loss.

[160] Dr. Hyatt testified that the fundamental difference between his calculations and those of Dr. Moazzami was that he used information from Tbaytel as to the plaintiff’s estimated future wage increases while Dr. Moazzami estimated the plaintiff’s future wage increases based on an annual increase of 4.3% each year. Dr. Hyatt testified that Dr. Moazzami’s use of statistical information to calculate growth in annual earnings includes hourly wages, hours worked and weeks worked per year in the relevant occupation. According to Dr. Hyatt, the calculation of the plaintiff’s future earnings should not include any increase in hours or weeks because she was already a full-time employee.

[161] On cross-examination, Dr. Hyatt clarified that his estimate of the plaintiff’s future earnings loss was based on the assumption that she would have retired at age 55 but for the incident and that, given the incident, she will continue to collect benefits to age 65. He agreed with the suggestion that given the incident, she would not retire and would continue to receive LTD and CPP disability benefits.

DR. J. STEWART

[162] Dr. Stewart is a psychiatrist in private practice in Thunder Bay. He was qualified as an expert in psychiatry and allowed to provide opinion evidence as to the psychiatric diagnosis of the plaintiff, the causes of her psychiatric condition, her prognosis and potential of her returning to employment. For the purpose of preparing his opinion and report, Dr. Stewart was provided with various medical reports regarding the plaintiff. He also interviewed her for approximately 90 minutes on April 26, 2013.

[163] Dr. Stewart found that the plaintiff tolerated his questioning, engaged well and responded appropriately during the interview. She displayed no obvious defects in her cognitive functioning, including memory, attention and concentration. Based on the results of his testing of the plaintiff and balancing all the information that he had, Dr. Stewart concluded that the plaintiff might exaggerate symptoms but was not actively malingering.

[164] Dr. Stewart opined that both work related stress and the civil litigation process continued to cause the plaintiff a significant amount of stress, the latter being the more immediate stressor. Dr. Stewart was of the opinion that the fragmentation of the plaintiff’s treatment, the length of time that it was taking for her to get back to work and her exposure to the ongoing legal process were complicating factors in the plaintiff’s treatment and recovery.

[165] As of the date of his examination of Ms. Colistro, Dr. Stewart felt that she had the capacity to gradually return to work, at least on a part time basis, with consistent and close monitoring of her mental health to assess her tolerance. He noted that there is generally a subjective benefit to a person returning to work. Dr. Stewart also opined that, as of April 2013, he had expected the plaintiff to “substantially improve over the next 6 to 12 months with appropriate treatment.”

[166] Dr. Stewart confirmed on cross-examination that he reviewed all medical reports provided to him only after his assessment of Ms. Colistro. Dr. Stewart reviewed the Independent Psychiatric Assessment of Dr. Suzanne Allain, dated October 28, 2009. He agreed that Dr. Allain’s 2009 diagnosis of the plaintiff was consistent with his 2013 diagnosis—major depressive disorder, PTSD, chronic with panic attacks. Dr. Stewart also reviewed the Psychological Assessment Report of Dr. Sullivan, dated July 18, 2007. He agreed that Dr. Sullivan’s 2007 diagnosis of PTSD and major depressive disorder was consistent with his 2013 diagnosis of the plaintiff.

[167] Dr. Stewart acknowledged that his opinion that the plaintiff could gradually begin to return to work after April 2013 was subject to the qualification that she should not return to the employ of Tbaytel because she would experience many triggering events, including possible contact with Mr. Benoit. In his words, the plaintiff returning to Tbaytel “would be very clinically contraindicated” in 2007 and in 2013. He agreed that even the possibility of encountering Mr. Benoit at Tbaytel would be a trigger.

[168] Dr. Stewart was also referred to the January 23, 2008, report of Dr. O’Reilly. Dr. Stewart agreed that Dr. O’Reilly’s 2008 diagnosis of the plaintiff as suffering from major depression was consistent with his 2013 diagnosis. Dr. Stewart opined that “it seems very clear that (Mr. Benoit’s hiring) was the trigger…I think she was primed in a way by the previous contact she had with (Mr. Benoit)…it’s definitely the trigger that seemed to make her condition more serious.” He was not able to suggest any other possible triggers.

[169] Dr. Stewart confirmed his opinion that, as of April 2013, the plaintiff suffered from major depressive disorder, chronic PTSD and related panic attacks. He agreed with the suggestion that although he expected the plaintiff to improve it was difficult to predict that improvement.

THE POSITIONS OF THE PARTIES

THE PLAINTIFF

INTENTIONAL INFLICTION OF MENTAL SUFFERING

[170] The plaintiff submits that the three required elements of this tort have been established as against Tbaytel on a balance of probabilities:

1. Tbaytel’s hiring of Mr. Benoit, in all of the circumstances, was flagrant and outrageous conduct;

2. Tbaytel’s hiring of Mr. Benoit was calculated to harm the plaintiff; and

3. Tbaytel’s hiring of Mr. Benoit caused the plaintiff to suffer a visible and provable illness.

[171] The plaintiff submits that Tbaytel knew that Mr. Benoit had sexually harassed the plaintiff in 1995 as a result of the plaintiff’s disclosure to them on January 29, 2007; the knowledge gained by their counsel through their investigative process, which knowledge should be imputed to Tbaytel; and Mr. Diedrich’s review of, among other things, the Alexander memo.

[172] The plaintiff further submits that the evidence of Ms. Seeley and Ms. McAuley, together with the plaintiff’s emails to Mr. Esau and the February 1, 2007 note from Dr. Rao establish that Tbaytel was aware that the proposed hiring of Mr. Benoit precipitated the plaintiff’s psychological illness. The plaintiff suggests that Tbaytel essentially ignored the plaintiff’s concerns, evidenced by the fact that Tbaytel did not discuss the issues with the plaintiff after January 29, 2007, nor did they discuss them with Mr. Benoit or any of the individuals involved in the 1995/1996 incidents and investigation, but for Ms. Hacio.

[173] The plaintiff submits that Ms. Hacio clearly conveyed to Ms. Seeley and Mr. Diedrich that Mr. Benoit had been terminated by the City in 1996 for sexual harassment and that it would be unwise to hire him. The plaintiff submits that the evidence establishes that Tbaytel chose to proceed with hiring Mr. Benoit despite their knowledge that he had sexually harassed Ms. Colistro in 1995, that he had been terminated at least partially due to this conduct, and that the hiring of Mr. Benoit was causing the plaintiff obvious and significant mental distress.

[174] The plaintiff further submits that the evidence establishes that Tbaytel knew that the nature of the consequences suffered by the plaintiff were substantially certain to follow from their hiring Mr. Benoit in the circumstances. In particular, the plaintiff notes Ms. Seeley’s observation of the plaintiff’s demeanour on January 29, 2007, Ms. Seeley’s knowledge of the plaintiff’s condition as of February 1, 2007, as disclosed in the plaintiff’s email to Mr. Esau that day, Tbaytel’s receipt of Dr. Rao’s February 1, 2007 note concerning the plaintiff, and Ms. McAuley’s comments on the February 7, 2007 Short Term Disability (STD) form wherein she advised Manulife that the harm to the plaintiff occurred on January 29, 2007.

[175] The plaintiff submits that the evidence establishes that Tbaytel’s conduct has resulted in the plaintiff suffering from a visible and provable illness, namely PTSD and major depressive disorder. The plaintiff submits that Dr. Stewart, Tbaytel’s medical expert, arrived at this diagnosis following an independent medical examination and opined that the triggering event was Tbaytel’s decision to hire Mr. Benoit. The plaintiff submits that Dr. Stewart’s diagnosis is consistent with that of all other medical professionals who have treated or assessed Ms. Colistro since January 2007.

[176] It is submitted that the plaintiff’s damages for the intentional infliction of mental suffering should be assessed on the basis that the plaintiff will not be able to re-enter the workforce until age 60, given both the medical evidence and the length of time the plaintiff has now been out of the workforce.

[177] The plaintiff requests general damages in the amount of $1,000,000 as compensation for the mental distress suffered by Ms. Colistro and because of the “plaintiff’s loss of identity as a homemaker, a mother and a productive employee of Tbaytel.”

[178] The plaintiff submits that the plaintiff’s damages for past and future loss of value of housekeeping services should be assessed in accordance with the evidence of Dr. Moazzami, namely $129,067 and $171,668 respectively, discounted by 50% to reflect a 50% loss of past and future housekeeping capacity. The plaintiff did not provide any submissions to the court in support of her position on the assessment of these damages.

[179] The plaintiff submits that the court should also prefer the evidence of Dr. Moazzami when assessing the plaintiff’s past and future earnings loss. In Dr. Moazzami’s opinion, the plaintiff’s past earnings loss to April 30, 2016, is $661,601, less $260,033 in LTD Benefits received by her which the plaintiff concedes should be deducted. The plaintiff therefore claims $401,567 in damages for past earnings loss.

[180] Dr. Moazzami calculated the plaintiff’s future earnings loss, assuming retirement age 60, at $943,990. Subtracting the LTD benefits received by the plaintiff during the future earnings loss period, the plaintiff claims $680,666 in damages for future earnings loss.

[181] The plaintiff further requests aggravated damages in the amount of $500,000 and punitive damages in the amount of $300,000. No submissions were made as to why either should be awarded based on the specific facts of this case. Finally, the plaintiff claims “the approximately $2,000 claimed as medical fees paid by OHIP.”

[182] The plaintiff submits that the plaintiff’s CPP disability benefits and OMERS pension contribution waiver should not be deducted from the damages assessed to compensate for economic loss. The plaintiff submits that neither of these benefits, which have accrued to the plaintiff as a result of her disability, is an indemnity against the loss caused by Tbaytel’s tortious conduct.

CONSTRUCTIVE DISMISSAL

[183] The plaintiff submits that she was constructively dismissed by Tbaytel as of August 10, 2007, the date on which she suggests accommodation discussions failed on a final basis.

[184] The plaintiff submits that an employee bears the burden of proving constructive dismissal from employment and can do so in either of two ways:

1. by showing the employer committed a single unilateral act that breached an essential term of the employment contract; or

2. by establishing conduct by an employer that, when viewed in light of all the circumstances, would lead a reasonable person to conclude that the employer no longer intended to be bound by the terms of the employment contract.

[185] The plaintiff submits that it is an implied term of any employment contract that an employer is bound to treat an employee honestly and fairly, which in turn requires the employer to ensure that the workplace atmosphere is conducive to the well-being of the employee.

[186] The plaintiff submits that Tbaytel breached this term of the plaintiff’s employment contract as follows:

1. by failing to properly investigate the plaintiff’s complaints about Tbaytel’s proposed hiring of Mr. Benoit;

2. by failing to fully and properly address the plaintiff’s concerns about her past sexual harassment by Mr. Benoit; and

3. by proceeding to hire an individual whom they knew had sexually harassed the plaintiff in the past.

[187] The plaintiff submits that Tbaytel’s breach of this implied term of the employment contract was objectively significant. The plaintiff further submits that any reasonable person in her situation during the first eight months of 2007 would have felt that the essential terms of their employment contract with Tbaytel were being substantially changed by Tbaytel as a result of their hiring of Mr. Benoit.

[188] In the alternative, the plaintiff submits that the second branch of the test for constructive dismissal has been met as the evidence establishes that Tbaytel’s hiring of Mr. Benoit made her continued employment intolerable.

[189] The plaintiff submits that it has been established that she was sexually harassed by Mr. Benoit in 1994/1995 and that she made Mr. Esau, her immediate supervisor and Ms. Seeley, VP of HR, aware of this immediately upon learning on January 29, 2007 of Tbaytel’s intention to hire Mr. Benoit. The plaintiff submits that Tbaytel did not place appropriate weight on Mr. Benoit’s past sexual harassment of her and minimized its impact on her when she learned of Tbaytel’s intention to hire Mr. Benoit 12 years later.

[190] The plaintiff further submits that Tbaytel did not conduct a sufficiently thorough investigation to determine exactly what had taken place at the City telephone department in 1995/1996, including Tbaytel’s failure to properly interview the plaintiff or other former City employees with knowledge of the 1995/1996 investigation.

[191] The plaintiff further submits that Tbaytel did not properly acknowledge Mr. Benoit’s past sexual harassment of her and did not do what was required in all the circumstances to properly assess her needs in light of their intention to proceed with hiring Mr. Benoit. As a result of these shortcomings, the plaintiff submits that proper accommodation was not possible, as indicated by Tbaytel’s accommodation proposals – simply return to work or accept a similar position but in a different building and risk direct or indirect contact with Mr. Benoit.

[192] The plaintiff submits that Tbaytel, in hiring Mr. Benoit knowing that he had previously sexually harassed her and that his past conduct continued to significantly impact her, created a poisoned work environment for the plaintiff which was essentially impossible to remedy. The plaintiff submits that the actions of Tbaytel taken cumulatively and viewed objectively, made her continued employment intolerable.

[193] The plaintiff submits that she is entitled to damages equivalent to an 18 month notice period given the basic but senior character of her employment, a 20 year period of employment and her age.

[194] In addition to 18 months’ pay in lieu of notice, the plaintiff submits that she is entitled to “Wallace” damages in the amount of $250,000 because of Tbaytel’s conduct during the course of their constructive dismissal of her. The plaintiff submits that Tbaytel was unduly insensitive in creating and perpetuating a toxic work environment which led to her constructive dismissal.

THE CLAIM AGAINST THE CITY

[195] The plaintiff submits that Tbaytel, a Municipal Services Board, is a statutory agent of the City, pursuant to section 197(2) of the Municipal Act. The plaintiff submits that the City is therefore “liable to indemnify” the plaintiff should Tbaytel be unable to pay any damages awarded against them.

TBAYTEL

INTENTIONAL INFLICTION OF MENTAL SUFFERING

[196] Tbaytel agrees with the plaintiff as to the elements of this intentional tort. However, Tbaytel submits that tort law does not provide compensation for all “nasty” and “stress-causing” conduct parties may impose on others. It is suggested that the specific elements of this tort thus serve to narrow its ambit.

[197] Tbaytel submits that the evidence establishes that Mr. Diedrich was unaware of any history between the plaintiff and Mr. Benoit when Tbaytel offered employment to Mr. Benoit, prior to Mr. Benoit’s acceptance of Tbaytel’s offer or at any point in time prior to January 29, 2007. Tbaytel submits that any flagrant and outrageous conduct alleged by the plaintiff all occurred after January 29, 2007, the “trigger” date for the onset of the plaintiff’s nervous shock.

[198] Given the clear evidence on this point, Tbaytel submits that the substance of the plaintiff’s claim is that Tbaytel failed to anticipate the extent of her distress and provide her with a veto over Mr. Benoit’s hiring. Tbaytel submits that the evidence establishes that they acted prudently and appropriately upon learning of the plaintiff’s issues with Mr. Benoit, including fully investigating the background circumstances and then making all reasonable efforts to accommodate the plaintiff when they chose to proceed with the hiring of Mr. Benoit. Tbaytel submits that this is not evidence of flagrant or outrageous conduct toward the plaintiff.

[199] Tbaytel submits that the second element of this tort requires the plaintiff to establish that Tbaytel either desired to produce the consequences which occurred or knew that the consequences were substantially certain to follow. As the plaintiff is not alleging that Tbaytel intended to cause harm to the plaintiff by hiring Mr. Benoit, Tbaytel submits that the plaintiff must establish that Tbaytel knew that the kind of harm suffered by Ms. Colistro was substantially certain to follow from their alleged flagrant and outrageous conduct.

[200] Tbaytel cautions this court that the distinction between intentional torts and negligence must be maintained. It is submitted that neither the objective standard of foreseeability or recklessness can ground liability in this case and that the standard of constructive intention is high.

[201] Tbaytel submits that prior to the January 29, 2007 announcement, Mr. Diedrich was unaware that hiring Mr. Benoit would cause harm to anyone. It was only after this point in time that Mr. Diedrich became aware that the plaintiff was a complainant in the City’s 1995 investigation of Mr. Benoit. Tbaytel submits that the only objective medical information Tbaytel received between January 29, 2007 and Mr. Benoit’s February 19, 2007 start date was Dr. Rao’s February 1, 2007 one sentence note stating that the plaintiff was off work on “stress leave” until March 1, 2007.

[202] Tbaytel submits that there was no medical information of which Tbaytel was aware that would suggest the hiring of Mr. Benoit by Tbaytel would trigger the occurrence or reoccurrence of PTSD or major depressive disorder for the plaintiff. In these circumstances, Tbaytel submits that it has not been established that Tbaytel knew that it was substantially certain that the hiring of Mr. Benoit would cause that kind of harm to the plaintiff.

[203] Once made aware of the plaintiff’s concerns, Tbaytel had counsel investigate and report, and Mr. Diedrich and Ms. Seeley spoke with Ms. Hacio. Tbaytel notes that all forms required to enable the plaintiff to access STD, LTD and WSIB benefits were completed by Tbaytel in a timely fashion. Tbaytel also submits that the plaintiff’s salary was continued while her STD claim was pending and that concerted efforts at accommodation and mediation were attempted to resolve the issues in a mutually acceptable way. Tbaytel submits that this conduct is inconsistent with an employer intending to cause harm to an employee.

[204] Tbaytel submits that the medical evidence as to the “visible and provable” illness allegedly suffered by the plaintiff is inconsistent as to her actual condition, level of functioning or prognosis. Tbaytel further submits that the court should be concerned about the reliability of the medical evidence because it relies to a large extent on the plaintiff’s subjective reporting.

[205] Tbaytel submits that the plaintiff’s claim for $1,000,000 in general damages is excessive and almost three times the current judicial cap on general damages for pain and suffering. Tbaytel further submits that the claim for general damages as compensation for loss of “identity as a homemaker” is included within the plaintiff’s housekeeping loss claims and is, in any event, unsupported by any evidence. It is also suggested that the claim of “loss of identity as a mother” is unknown in law.

[206] Tbaytel submits that the plaintiff’s claim for past and future housekeeping loss should be rejected. First, Tbaytel submits that such a claim was never pleaded and that they therefore did not examine the plaintiff for discovery on it. Second, Tbaytel submits that the plaintiff has failed to prove any loss of housekeeping capacity. It is suggested that Dr. Moazzami conceded that he was working from statistical averages only without any evidence as to the extent or value of services apparently lost by the plaintiff. Finally, Tbaytel submits that the plaintiff’s claim for loss of value of future housekeeping services is not supported by a functional abilities evaluation. Without such evidence, Tbaytel submits the court would be speculating in assessing such damages.

[207] Tbaytel submits that Dr. Hyatt’s evidence and opinions as to the plaintiff’s past earnings loss should be preferred over those of Dr. Moazzami because Dr. Hyatt’s opinions are based on assumptions specific to the plaintiff and established by the evidence at trial as opposed to the statistical averages used by Dr. Moazzami. The assumptions which Tbaytel submits were proven are:

1. the plaintiff would have retired at 55 years of age, but for the incident;

2. the plaintiff’s estimated pre-trial earnings were based on the evidence of average actual wage increases for executive assistants at Tbaytel and this evidence was not challenged; and

3. the plaintiff has received salary continuance, STD benefits, LTD benefits, CPP disability benefits and an OMERS PCDW waiver since 2007 as set out in Dr. Hyatt’s calculations.

[208] Tbaytel submits there is no evidentiary basis for the plaintiff’s position that future earnings loss be premised on the plaintiff returning to work at age 60.

[209] Tbaytel submits that it is not appropriate to award either aggravated or punitive damages in this case. The quantum of aggravated damages sought is excessive in any event. It is submitted that there has been no conduct proven on the part of Tbaytel to suggest that a punitive damage award, in addition to a compensatory award, is required to meet the objectives of retribution, deterrence and denunciation.

[210] Tbaytel submits that there is no evidence before this court establishing that OHIP is pursuing a subrogated claim in the amount claimed by the plaintiff.

[211] Tbaytel notes that in closing submissions, the plaintiff concedes that LTD benefits received by Ms. Colistro are properly deducted from her estimated past and future income loss. Tbaytel submits that CPP disability benefits and the OMERS PCDW should also be deducted from any past or future income loss damages assessed.

[212] Tbaytel submits that the plaintiff applied for CPP disability benefits because she was required to do so pursuant to the terms of her LTD coverage. The plaintiff’s LTD benefits are reduced by the amount of CPP disability benefits the plaintiff receives. According to Tbaytel, the CPP disability benefits should therefore be seen as an indemnity for the plaintiff’s loss of ability to work which would not have accrued to the plaintiff but for Tbaytel’s alleged tortious conduct.

[213] Since 2007, the plaintiff has been entitled to a disability waiver in regard to her OMERS contributions while continuing to accrue full pension service credits. Tbaytel submits that an employee’s OMERS contributions are the consideration for the accrual of pension credits. It is submitted that the amount of OMERS contributions the plaintiff has been relieved from paying due to disability should be deducted from any past or future income loss damages assessed. If not, Tbaytel submits that the plaintiff will, in effect, be compensated twice.

CONSTRUCTIVE DISMISSAL

[214] Tbaytel submits that the test for establishing a poisoned workplace for the purpose of constructive dismissal is stringent. The test is objective, with the plaintiff bearing the onus of establishing that, to the objective reasonable bystander, a poisoned workplace environment had been created. Tbaytel submits that, except for particularly egregious, stand-alone incidents, a poisoned workplace is not created unless serious wrongful behaviour sufficient to create a hostile or intolerable work environment is persistent or repeated.

[215] Tbaytel submits that the alternate test for constructive dismissal is equally stringent and also objective, the issue being whether a reasonable person in the same situation as the plaintiff would have felt that the essential terms of the employment contract were being substantially changed.

[216] Tbaytel further submits that the plaintiff did not have the right to dictate where she would work or the exact employment role she would assume upon a return to work after January 29, 2007. It is suggested that Tbaytel was not required to completely immunize the plaintiff from all contact with Mr. Benoit. Tbaytel submits that the mere possibility of contact cannot establish, to the objective reasonable bystander that such exposure would result in a poisoned work environment.

[217] Tbaytel submits that they made all reasonable efforts to accommodate the plaintiff’s concerns, including mediation, having her assume an executive assistant position in a different building and thereby minimizing potential contact with Mr. Benoit, and prohibiting Mr. Benoit from addressing the plaintiff. Tbaytel submits that the plaintiff’s assertion that she was being asked to accept a demotion is contradicted by all other evidence on the issue. Tbaytel submits that the plaintiff’s evidence was clear—the only resolution she would accept was having Tbaytel abort the hiring of Mr. Benoit. In all of these circumstances, Tbaytel submits that the plaintiff has not established that she was constructively dismissed.

[218] Tbaytel submits that if it is found that the plaintiff was constructively dismissed, the dismissal should be found to have occurred on January 29, 2007, the date Mr. Benoit’s hiring was announced or, at the latest, on February 6, 2007, the date on which Tbaytel advised the plaintiff that they were proceeding with hiring Mr. Benoit. Tbaytel submits that the evidence establishes that nothing short of Mr. Benoit’s termination would having satisfied the plaintiff, rendering any accommodation efforts after February 6, 2007 futile.

[219] Tbaytel submits that the plaintiff occupied an administrative position with Tbaytel and its predecessor for approximately 17 years and was 39 years old in January 2007. It is submitted that an appropriate notice period in these circumstances is 12 months from January 29, 2007.

[220] Tbaytel submits that the plaintiff received her normal rate of pay from January 30, 2007 to May 18, 2007, and thereafter received LTD benefits equivalent to 75% of her normal pay for the balance of the 12 month notice period. In these particular circumstances, Tbaytel submits that the plaintiff’s recovery is properly limited to the difference between 12 months’ remuneration and what she received as salary continuance and LTD during the 12 month notice period.

[221] Tbaytel submits that if it is found that the plaintiff was constructively dismissed, she had an obligation to mitigate her loss which she could have done by accepting the offer of an executive assistant position working for Mr. Birch.

[222] Tbaytel submits that if it is found that the plaintiff was constructively dismissed, such dismissal was not unduly insensitive or unfair so as to attract “Honda or Wallace Damages.”

THE CITY

INTENTIONAL INFLICTION OF MENTAL SUFFERING

[223] The City concedes that it is more likely than not that Ms. Colistro was harassed by Mr. Benoit in 1995. The City acknowledges that Mr. Alexander, the City’s Director of Human Resources at the time, testified that part of the reason that Mr. Benoit was terminated in 1996 was a finding by the City that Mr. Benoit had engaged in sexual harassment.

[224] The City submits that the required elements of this tort have not been established and that there should be no liability found against either defendant, for the reasons submitted by Tbaytel. However, if liability against Tbaytel is found, the City accepts that it is vicariously liable, jointly with Tbaytel, for any compensatory damages and costs awarded to the plaintiff.

[225] The City submits that punitive damages are properly awarded only in exceptional cases and that this case is not exceptional. The City submits that if the plaintiff is successful and awarded compensatory damages, those compensatory damages would be for the same conduct as that which gives rise to an argument for punitive damages.

[226] The City further submits that if punitive damages are awarded, they should be payable only by Tbaytel. The City submits that the purpose of punitive damages is to punish and deter reprehensible individual conduct. Given this purpose, the City submits that liability for punitive damages cannot be joint or vicarious.

[227] The City further submits that the plaintiff was generally satisfied with the City’s conduct in 1996 and has not specifically alleged any reprehensible conduct against the City in 1996 or in 2007. As such, the City should bear no liability for punitive damages.

[228] The City acknowledges that aggravated damages are compensatory in nature and that vicarious liability for aggravated damages has been found in some cases. However, the City submits that aggravated damages are awarded to address outrageous, malicious and/or reprehensible conduct of the party against whom they are awarded. The City submits that it did not commit any reprehensible conduct and should not be liable for aggravated damages.

CONSTRUCTIVE DISMISSAL

[229] The City submits that the plaintiff’s subjective complaints fail to meet the objective standard required to establish constructive dismissal from her employment with Tbaytel. The City further submits that Tbaytel’s offers of accommodation indicate a willingness on their part to compromise, which was not achieved because of the plaintiff’s unwillingness to consider any accommodation proposal short of Tbaytel not finalizing Mr. Benoit’s hiring.

[230] In the alternative, the City submits that the plaintiff has never resigned from Tbaytel, remains an employee on LTD and has not effectively severed the employment relationship.

THE GOVERNING LEGAL PRINCIPLES

THE INTENTIONAL INFLICTION OF MENTAL SUFFERING

[231] The parties are in agreement as to the three elements of the tort which the plaintiff must establish:

1. flagrant or outrageous conduct;

2. calculated to produce harm; and

3. resulting in a visible and provable illness.

[232] The first and third branches of the test are objective; the second branch is subjective. In Prinzo v. Baycrest Centre for Geriatric Care, 2002 45005 (ON CA), [2002] O.J. No. 2712 (Ont. C.A.), at para. 45, the Ontario Court of Appeal clarified that the requirement that the conduct be calculated to produce harm is established “where the actor desires to produce the consequences that follow from the act, or if the consequences are known to be substantially certain to follow.”

[233] In Piresferreira v. Ayotte 2010 ONCA 384, [2010] O.J. No. 2224 (Ont. C.A.), at para. 79, the Ontario Court of Appeal reiterated that the second element of the tort is not satisfied by evidence of foreseeability or reckless disregard: “Foreseeability, which indicates only that a result may follow, is much less than knowledge that a result is substantially certain to follow.”

[234] In Piresferreira, a case in which the plaintiff was alleged to be suffering from PTSD and a major depressive disorder as a result of the defendant’s conduct, the Court noted that where the tort is established, the plaintiff is entitled to recover the full extent of the damages suffered even if they could not have been anticipated. The Court stated that it “must be shown that the defendant desired to produce the kind of harm that was suffered or knew that it was substantially certain to follow…the extent of the harm need not be anticipated, but the kind of harm must have been intended or known to be substantially certain to follow.” (See para. 78, emphasis in original)

[235] Commenting in general terms on the nature of this intentional tort, Perell J. provided the following observation in High Parklane Consulting Inc. v. Royal Group Technologies Limited, (2007) 410 (ONSC), at para. 36:

It is trite to say that making a living is a stressful activity and that much of life can be nasty and brutish. Tort law does not provide compensation for all stress-causing and nasty conduct that individuals may suffer at the hands of another, and the elements of the tort of intentional infliction of mental distress that the conduct must be extreme, flagrant, outrageous and calculated to caused harm are the law’s ways of narrowing the ambit of the tort.

[236] Perell J. also considered the kind of conduct that has, in an employment context, been encompassed by this tort, by reference to para. 47 of Prinzo:

In the employment law context, damages for mental distress arising from the tort of intentional infliction of mental suffering have also been awarded where, for example, an employee was severely harassed by a superior who had knowledge of her fragile mental state (Boothman v. R., 1993 2949 (FC), [1993] 3 F.C. 381, 49 C.C.E.L. 109 (T.D.)); an employee suffered sexual harassment from her colleagues and supervisors (Clark v. Canada, 1994 3479 (FC), [1994] 3 F.C. 323, 76 F.T.R. 241 (T.D.)); and where an employee was subjected to a confrontational, brash and contradictory management style (Bogden v. Purolator Courier Ltd., 1996 10572 (AB KB), [1996] A.J. No. 289 (Q.B.)).

DAMAGES

[237] Punitive damages are awarded against a defendant in exceptional circumstances for “malicious, oppressive and high-handed” misconduct that “offends the court’s sense of decency.” The test limits the award to misconduct that represents a marked departure from ordinary standards of decent behaviour. The objective of punitive damages is to punish the defendant rather than compensate a plaintiff. Punitive damages are awarded only where compensatory damages, which to some extent are punitive, are insufficient to accomplish the objectives of retribution, denunciation and deterrence. (Whiten v. Pilot Insurance Co., 2002 SCC 18, 2002 S.C.C. 18 at paras. 36 and 94.)

[238] In Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, the Ontario Court of Appeal reviewed an award of punitive damages in the amount of $150,000 in addition to an award of general damages in the amount of $100,000 where the defendant was found liable for the intentional infliction of mental suffering.

[239] The Court noted that punitive damage awards are not compensatory but are meant to focus on and punish a defendant’s conduct in exceptional cases where such conduct has been “malicious, oppressive and high handed” (See para. 59). The Court agreed that the defendant’s conduct met that exceptional standard but went on to find that the $150,000 award of punitive damages, together with the compensatory award of $100,000, was not rationally required and not proportionate to the purposes of retribution, denunciation and deterrence. The punitive damages were reduced to $10,000.

[240] The nature and purpose of aggravated damages were described by the Supreme Court of Canada in Hill v. Church of Scientology, 1995 59 (SCC), [1995] 2 S.C.R. 1130 at paras. 192 and 193:

192 These damages take into account the additional harm caused to the plaintiff’s feelings by the defendant’s outrageous and malicious conduct. Like general or special damages, they are compensatory in nature. Their assessment requires consideration by the jury of the entire conduct of the defendant prior to the publication of the libel and continuing through to the conclusion of the trial. They represent the expression of natural indignation of right-thinking people arising from the malicious conduct of the defendant.

193 If aggravated damages are to be awarded, there must be a finding that the defendant was motivated by actual malice, which increased the injury to the plaintiff, either by spreading further afield the damage to the reputation of the plaintiff, or by increasing the mental distress and humiliation of the plaintiff.

CONSTRUCTIVE DISMISSAL

[241] Farber v. Royal Trust Co., 1997 387 (SCC), [1997] 1 S.C.R. 846, is still considered to be the leading case on the law of constructive dismissal in Canada. In Farber, at para. 33, the Supreme Court held:

Where an employer unilaterally makes a fundamental or substantive change to an employee’s contract of employment – a change that violates the contract’s terms – the employer is committing a fundamental breach of the contract that results in its termination and entitles the employee to consider…herself constructively dismissed. The employee can then claim damages from the employer in lieu of reasonable notice.

[242] In Shah v. Xerox Canada Ltd., 2000 2317 (ONCA), the Ontario Court of Appeal rejected a narrow interpretation of Farber’s definition of constructive dismissal. The Court agreed with the trial judge’s conclusion that a court may also find that an employee has been constructively dismissed, without identifying a specific fundamental term that has been breached, where the employer’s treatment of the employee makes continued employment intolerable (See para. 6).

[243] In Potter v. New Brunswick Legal Aid Services Commission, 2015 SCC 10, [2015] 1 S.C.R. 500, the Supreme Court applied and restated the Farber test for constructive dismissal, describing the ultimate purpose of the inquiry as determining whether the employer’s act evinced an intention to no longer be bound by the contract.

[244] The Court in Potter articulated a two-pronged test to determine if constructive dismissal has occurred:

1. the court must first identify an express or implied term of the contract that has been breached and then determine whether that breach substantially alters an essential term of the employment contract so as to constitute constructive dismissal; or

2. in considering the cumulative effect of past acts of the employer, has it generally been established that the employer intended to no longer be bound by the contract.

[245] The Court expanded on the second branch of the test for constructive dismissal at para. 42:

The second branch of the test for constructive dismissal necessarily requires a different approach. In cases in which this branch of the test applies, constructive dismissal consists of conduct that, when viewed in the light of all the circumstances, would lead a reasonable person to conclude that the employer no longer intended to be bound by the terms of the contract. The employee is not required to point to an actual specific substantial change in compensation, work assignments, or so on, that on its own constitutes a substantial breach. The focus is on whether a course of conduct pursued by the employer “evince[s] an intention no longer to be bound by the contract”; Rubel Bronze, at p. 322. A course of conduct that does evince such an intention amounts cumulatively to an actual breach.

[246] The Ontario Court of Appeal reviewed the law of constructive dismissal in the context of an alleged poisoned work environment in General Motors of Canada Limited v. Johnson, 2013 ONCA 502. The plaintiff bears the onus of establishing a claim of a poisoned workplace. The test is objective. A plaintiff’s subjective or genuinely-held beliefs are insufficient to discharge the onus. There must be evidence that, to the objective reasonable bystander, would support the conclusion that a poisoned workplace environment had been created. Except for particularly egregious, stand-alone incidents a poisoned workplace is not created, as a matter of law, unless serious wrongful behaviour sufficient to create a hostile or intolerable work environment is persistent or repeated (See paras. 66 and 67).

[247] The factors to be considered in determining a reasonable notice period in cases of wrongful or constructive dismissal are set out in Bardal v. The Globe and Mail, 1960 294 (ON SC), [1960] O.J. No. 149 at para. 21:

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 qualifications of the servant.

[248] These factors are to be applied on a case-by-case basis and no one factor is to be given disproportionate weight.

[249] In Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362, the Supreme Court clarified and redefined some aspects of the law of damages in the context of employment, in particular the basis for and calculation of damages for the manner of dismissal.

[250] The Court indicated that damages resulting from the manner of dismissal can be awarded in addition to compensatory damages for wrongful dismissal. Such damages are no longer to be awarded through an arbitrary extension of the notice period, but through a compensatory award that reflects actual damages resulting from the manner of dismissal. Such damages are available only if 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” (See paras. 57 and 59).

[251] The Alberta Court of Appeal applied Honda in Merrill Lynch Canada Inc. v. Soost, 2010 ABCA 251. The Court confirmed that when dismissing an employee, an employer has a duty not to use methods which are unduly unfair or insensitive. Mere sloppy conduct by the employer does not suffice for such extra damages; it takes something akin to intent, malice, or blatant disregard for the employee. Honda damages are limited to compensating loss and are not punitive. (See paras. 16, 17 and 19)

FACTUAL FINDINGS

[252] I am satisfied that the plaintiff was sexually harassed by Mr. Benoit in 1995, when both were with the City telephone department and Mr. Benoit was the plaintiff’s immediate supervisor.

[253] Ms. Colistro complained of Mr. Benoit’s behaviour to Ms. Hacio and to Mr. Thom and an investigation ensued. Ms. Hacio advised Mr. Benoit by letter of December 11, 1995 that he was suspended pending the outcome of an investigation with respect to allegations of, among other things, sexual harassment.

[254] The City’s 1995 internal investigation of the sexual harassment allegations made against Mr. Benoit resulted in the following documents:

1. Mr. Thom’s notes of his November 21, 1995 interview with the plaintiff;

2. Ms. Bates’ December 29, 1995 summary regarding the “S. Benoit Complaint”; and

3. the Alexander memo dated January 15, 1996 and addressed to Ms. Hacio.

[255] The Alexander memo was immediately followed by Ms. Hacio’s termination letter to Mr. Benoit, dated January 16, 1996. Mr. Benoit testified that he was never interviewed during this investigation nor was he ever told who the complainant was. I have no reason to question this evidence.

[256] Ms. Hacio testified that she was instructed to officially terminate Mr. Benoit without cause but that she had advised City council at the time that the termination was because of sexual harassment, misappropriation of funds and managerial incompetence. Ms. Hacio further testified that all documents pertaining to the investigation and termination were retained and easily accessible.

[257] I find that one of the reasons for Mr. Benoit’s 1996 termination was his sexual harassment of Ms. Colistro. Ms. Colistro testified that she was satisfied with the City’s handling of this matter in 1996. I further find that the documents pertaining to the investigation, most importantly the Alexander memo, were retained by the City and readily available to Tbaytel in 2007.

[258] Mr. Diedrich was hired as the CEO and President of Tbaytel in the fall of 2006. At that time, Ms. Seeley was the VP of HR for Tbaytel. Ms. Seeley had worked with Mr. Benoit at Bearskin Airlines. She was aware that Tbaytel would be looking for somebody to fill the soon to be vacant position of VP Business Consumer Markets. Ms. Seeley thought Mr. Benoit would be a good fit and suggested that he meet with Mr. Diedrich.

[259] Ms. Seeley was aware that Mr. Benoit had been terminated by the City in the mid 1990s. Her evidence that Mr. Hjorth told her that the termination was without cause was corroborated by Mr. Hjorth. However, she conceded on cross-examination that she was aware that there had been allegations of sexual harassment made against Mr. Benoit at the time of his termination and that she shared this information with Mr. Diedrich.

[260] Mr. Benoit told Mr. Diedrich during the interview process that he had previously been terminated by the City. Mr. Diedrich apparently did not ask him to elaborate. Tbaytel proceeded to hire Mr. Benoit by letter dated January 12, 2007. His employment was expressly “effective” February 19, 2007 and subject to the usual 12 month probationary period.

[261] Ms. Seeley and Mr. Diedrich were obviously aware that Mr. Benoit had been terminated by the City in 1996, officially without cause. I am persuaded that they were also aware that there was more behind his termination than the “official” reasons, including allegations of sexual harassment. However, there is no evidence to suggest that either of them had, as of January 12, 2007, any knowledge that Mr. Benoit’s 1996 termination involved allegations of sexual harassment of Ms. Colistro.

[262] On January 29, 2007, Mr. Diedrich announced the hiring of Mr. Benoit. Ms. Colistro was shocked and very upset. She emailed Mr. Esau, advising him that she was not feeling well and was going home. Mr. Esau met with Mr. Colistro during the afternoon of January 29, 2007. I accept Mr. Colistro’s evidence that he told Mr. Esau that Mr. Benoit had been terminated in 1996 for sexually harassing Ms. Colistro.

[263] Mr. Esau and Ms. Seeley then met with the Colistros that evening. Where Ms. Colistro’s evidence conflicts with Ms. Seeley’s evidence as to this meeting, I prefer to accept the evidence of Ms. Colistro about what occurred, despite the fact that she was admittedly upset and very emotional. I was less than impressed with Ms. Seeley’s purported recollection of the events of January and February 2007.

[264] Ms. Colistro told Mr. Esau and Ms. Seeley that Mr. Benoit had harassed her and others in 1995 and was terminated in 1996 for these reasons. She also provided Mr. Esau and Ms. Seeley examples of sexually inappropriate comments made to her by Mr. Benoit. Mr. Esau candidly acknowledged that the Colistros were “very upset.” He deferred to Ms. Seeley, who was the HR person, to handle the issue from this point forward.

[265] Ms. Seeley, as a result of this meeting, was aware that Ms. Colistro was the 1995 complainant of sexual harassment against Mr. Benoit and also aware that Ms. Colistro was shocked and very upset about Mr. Benoit being hired. Ms. Seeley testified to the fact that “I’ve never doubted that something did occur…”. Ms. Seeley communicated this information to Mr. Diedrich on January 30, 2007.

[266] Between January 30, 2007, and February 6, 2007, Tbaytel “proceeded with (their) own due diligence” into the matter, to use Mr. Diedrich’s words from his February 6, 2007 letter to Ms. Colistro. What that process involved and what information that process provided to Mr. Diedrich must be distilled from the inconsistent evidence of Ms. Seeley, Mr. Diedrich and Ms. Evans.

[267] Ms. Evans was the City solicitor at the time and I accept her impartial evidence without hesitation. She reviewed the relevant files at the request of Mr. Diedrich and Ms. Seeley. In these files, she found and reviewed Mr. Thom’s November 21, 1995 notes, Ms. Bates’ December 29, 1995 “S. Benoit Complaint” summary, the January 15, 1996 Alexander memo, and Ms. Hacio’s January 16, 1996 termination letter to Mr. Benoit. Ms. Evans met with Ms. Seeley and Mr. Diedrich after she had reviewed these documents and she provided them with a memo, dated January 31, 2007.

[268] I find it reasonable to infer that Ms. Evans’ review of this material informed her that Mr. Benoit was the subject of sexual harassment complaints in 1995, that Ms. Colistro was one of the complainants, and that the complaints were part of the reason for Mr. Benoit’s 1996 termination.

[269] Ms. Evans’ discussions with Ms. Seeley and Mr. Diedrich and her January 31, 2007 memo to them were ruled inadmissible as privileged communications. I find that it is reasonable to infer that Ms. Evans would have told Mr. Diedrich and Ms. Evans what she had learned. A client is deemed to be in possession of the information and knowledge gained by their solicitors in the ordinary course of their work as solicitors acting for the client (See Re National Trust Co. and Bouckhuyt et al., 1987 4098 (ON CA), 61 O.R. (2d) 640, (Ont. C.A.) at page 6).

[270] Ms. Seeley’s denial of knowledge of the contents of Mr. Thom’s November 21, 1995 notes and of the Alexander memo and her evidence that “there was no evidence of a specific person with a specific complaint for us to follow up on” is simply not credible.

[271] Mr. Diedrich was somewhat more forthcoming as to the knowledge he, and therefore Tbaytel, acquired between January 30, 2007 and February 6, 2007. Mr. Diedrich’s recollection was that he and Ms. Seeley actually attended the archives with Ms. Evans and reviewed documents in order to understand the circumstances surrounding Mr. Benoit’s 1996 termination. While Mr. Diedrich had difficulty recalling exactly what he had reviewed at the archives, he did “recognize” the Alexander memo when it was put to him. He further agreed that “what’s written here I guess,” referring to the Alexander memo, was his understanding of the reasons for Mr. Benoit’s 1996 termination.

[272] Ms. Seeley and Mr. Diedrich also spoke directly with Ms. Hacio by telephone sometime in or around January 30 or 31, 2007. I found Ms. Hacio to be an excellent witness with a very impressive recall of events which occurred many years ago. She had no difficulty recalling this telephone conversation. I accept her evidence that she told Mr. Diedrich and Ms. Seeley that Mr. Benoit had been terminated for sexual harassment and that it would be a “bad move” for Tbaytel to hire him.

[273] Ms. Seeley received copies of Ms. Colistro’s January 30 and February 1, 2007 emails to Mr. Esau and was therefore aware that Ms. Colistro was “not eating or sleeping, was vomiting and on the verge of a nervous breakdown,” albeit according to Ms. Colistro. At some point in time shortly after February 1, 2007, Ms. Seeley received Dr. Rao’s February 1, 2007 note advising that Ms. Colistro was off work due to stress.

[274] By letter dated February 6, 2007, Mr. Diedrich advised Ms. Colistro that Tbaytel had completed their “due diligence” and decided to proceed with hiring Mr. Benoit. I find that Tbaytel did so knowing that Mr. Benoit had sexually harassed Ms. Colistro in 1995, that he had been terminated partially as a result of that harassment, and that Ms. Colistro was extremely upset, unable to work and under a doctor’s care as a result of Tbaytel’s decision to hire Mr. Benoit in 2007.

[275] Tbaytel could have aborted the hiring of Mr. Benoit. He had been hired on a probationary basis effective February 19, 2007. They chose not to in favour of bringing Mr. Benoit on board assuming they could accommodate Ms. Colistro, whom Mr. Diedrich described as a “valuable employee.”

[276] I find that Tbaytel and Ms. Colistro drew their respective “lines in the sand” as of Mr. Diedrich’s February 6, 2007 letter in which he advised the plaintiff of Tbaytel’s intentions. Any accommodation attempts thereafter were doomed.

[277] Tbaytel offered Ms. Colistro an equivalent position in an adjacent building. There is no evidence to support Ms. Colistro’s suggestion that this was a demotion. The evidence clearly establishes that her duties, responsibilities, and all aspects of her remuneration would have been the same. Tbaytel quite properly did not guarantee Ms. Colistro that she would have no contact with Mr. Benoit while working in this proposed position. Incidental contact was known by both to be possible. However, Ms. Colistro was not interested in discussing accommodation. Her evidence, and that of her husband, was unequivocal—she would accept nothing less that Tbaytel not hiring Mr. Benoit.

DISCUSSION

[278] Given the above factual findings, I further find that it is as of February 6, 2007 that it must be determined if Tbaytel intentionally inflicted mental suffering on the plaintiff and/or constructively dismissed her.

[279] First, I conclude that the plaintiff has not established all required elements of the tort of intentional infliction of mental suffering.

[280] I am satisfied that Tbaytel’s conduct in deciding to proceed with hiring Mr. Benoit was, objectively viewed and in all the circumstances, flagrant and outrageous conduct. Ms. Seeley acknowledged that she was aware of the sexual harassment allegations against Mr. Benoit in the fall of 2006. She told the court that she passed this information on to Mr. Diedrich. Perhaps understandably, little or nothing was done at this point in time given that the allegations were 12 years old and the complainant(s) were unknown.

[281] However, as of January 29, 2007, Tbaytel knew they had a significant problem on their hands. Ms. Colistro, a 20 year valued employee was visibly distraught and upset as a direct result of Tbaytel’s hiring of Mr. Benoit, and for very good reason. She had been sexually harassed by Mr. Benoit when he was her supervisor 12 years earlier. Ms. Colistro told Tbaytel what had gone on. In the first week of February 2007, Tbaytel was aware that she remained distraught and was unable to work because of their decision.

[282] Tbaytel embarked upon an investigation in order to inform themselves as to what had in fact occurred in 1995/1996. However, they did not interview Mr. Benoit about the allegations. They did not formally interview Ms. Colistro about her allegations. They did not interview any of the 15 employees interviewed by Ms. Bates in 1995. Nonetheless, the investigation did confirm exactly what Ms. Colistro had alleged—that Mr. Benoit had sexually harassed her in 1995 and that he had been terminated because of his behaviour. My review of Mr. Diedrich’s evidence on this point satisfies me that he knew exactly why Mr. Benoit had been terminated in 1996.

[283] Possessed with this knowledge, Tbaytel chose to finalize the hiring of Mr. Benoit, the person Mr. Diedrich wanted for the vacant position of VP Business Consumer Markets, while at the same time hoping to put Ms. Colistro’s concerns to rest by shuffling her to another building. This decision minimized and invalidated the sexual harassment complaints of Ms. Colistro, a 20 year valued and respected current employee of the company.

[284] Tbaytel’s conduct in this regard exceeds insensitivity or poor management. In my opinion, a reasonable person aware of all the facts would find the conduct of Tbaytel to be flagrant and outrageous.

[285] However, the evidence does not establish that Tbaytel’s conduct was calculated to produce harm, as that phrase has been interpreted. It is not alleged that Tbaytel intended to cause harm to the plaintiff. The plaintiff is therefore required to prove, on a balance of probabilities, that Tbaytel knew that the kind of harm suffered by the plaintiff (PTSD and a major depressive disorder) was substantially certain to follow from their hiring of Mr. Benoit.

[286] Tbaytel knew the plaintiff was very upset. They were aware that the plaintiff was unable to work. They were aware of the plaintiff’s statement that she was vomiting and on the verge of a nervous breakdown. I find that Tbaytel also had Dr. Rao’s note as of February 6, 2007, which merely stated that the plaintiff would be off work due to stress. In my opinion, however, this evidence cannot bear the weight the plaintiff suggests—that Tbaytel knew it was substantially certain that their conduct would precipitate the plaintiff’s PTSD and depression.

[287] I am persuaded that Tbaytel’s hiring of Mr. Benoit has resulted in the plaintiff suffering a visible and provable illness. In my opinion, the lay and medical evidence on this issue is credible and reliable. The plaintiff has been suffering from PTSD and depression since 2007. I accept that this condition was caused as a result of the plaintiff learning of Tbaytel’s hiring of Mr. Benoit and by their choice to finalize that hiring despite their knowledge of what occurred in 1995/1996 and the impact it was having on the plaintiff.

[288] The plaintiff’s claim against the defendants for the intentional infliction of mental suffering is dismissed.

[289] In the event that I am in error on the question of the defendant’s liability on this tort claim it is appropriate for me to assess the plaintiff’s damages, should liability ultimately be found.

[290] The plaintiff’s claim for general damages for pain and suffering in the amount of $1,000,000 is grossly excessive.

[291] There is no evidence to suggest that the plaintiff had any mental health issues prior to January 29, 2007. The medical evidence establishes that the conduct of Tbaytel triggered the onset of both PTSD and a major depressive disorder. Dr. Stewart, Tbaytel’s medical expert, agreed that the diagnosis of the plaintiff’s condition has been consistent between 2007 and his examination of the plaintiff in 2013—PTSD, now chronic, panic attacks and a major depressive disorder.

[292] Dr. Stewart also noted that the plaintiff engaged well and displayed no obvious deficits in her cognitive functioning. This was apparent from her testimony. Dr. Stewart also opined that, as of 2013, the plaintiff had the capacity to gradually return to work, although she had not attempted to do so at the time of trial.

[293] Ms. Colistro’s marriage remains solid and she has the ongoing support of family. However, it is obvious from her evidence and that of her husband that the quality of her life has been significantly impaired. Both she and her husband testified that she is smoking a great deal, has developed an issue with alcohol and is gambling to relieve stress. I would award the plaintiff general damages in the amount of $100,000.

[294] I have assessed the plaintiff’s past economic loss for the period January 29, 2007 to April 30, 2007 based on the evidence and opinions of Dr. Hyatt, rather than those of Dr. Moazzami. Dr. Hyatt’s calculations are premised on information provided by Tbaytel. This information established the plaintiff’s base salary in 2007 at $55,146, inclusive of a substantial “one-time wage adjustment” in December 2007, and her total 2007 income, inclusive of STI, at $59,490. Subsequent to December 2007, the annual merit pay increase for the executive assistant position at Tbaytel was 2% per year. Further, from 2008 to 2015, for the years 2007 to 2014, Tbaytel estimated the Short Term Incentive payments that Ms. Colistro would have been entitled to based on company performance.

[295] Dr. Moazzami rejected this information in favour of a statistical average for two reasons. First, he found that Ms. Colistro’s actual annual income had increased by 12.3% per year between 2003 and 2006. Second, he did not accept that the administrative assistants at Tbaytel received annual pay increases less than the average pay increases for this employment position in northwestern Ontario for the period 2005 to 2011.

[296] However, Tbaytel’s position was supported by the unchallenged evidence of Ms. McAuley who testified that significant hourly wage increases were made across the board at Tbaytel on a one-time basis in 2006 and 2007 as a result of a compensation review. Dr. Moazzami also appears to have assumed that the Short Term Incentive payments received by the plaintiff were part of her base salary, which was clearly not the case.

[297] I accept the evidence of Dr. Hyatt and find that the plaintiff’s past loss of earnings for the period January 29, 2007 to April 30, 2016 were $592,157.

[298] During this same period of time it is not in dispute that the plaintiff received the following:

1. salary continuance from January 30 to May 17, 2007 in the amount of $19,408;

2. LTD benefits in the amount of $235,722;

3. CPP disability benefits in the amount of $96,071; and

4. OMERS PCDW waiver totalling $47,237.

[299] The plaintiff concedes that the LTD benefits received should be deducted from the past economic loss calculation. Obviously the $19,408 in salary continuance should also be deducted in this calculation.

[300] Dr. Moazzami was of the opinion that the CPP disability benefits should be deducted from the economic loss calculation but that the OMERS PCDW amounts should not be deducted. Dr. Hyatt felt that they should both be deducted, never having seen a case where the issue was in dispute.

[301] I find that it is appropriate to deduct both CPP disability benefits and OMERS PCDW amounts from the past economic loss calculations. The plaintiff has been relieved of paying her OMERS contributions which represents a monetary benefit to her as she has continued to accrue pension credits without making contributions. The CPP disability benefits are integrated with the LTD benefits and reduce the amount of LTD payable. The CPP disability benefits, together with the LTD benefits, are an indemnity for the loss of ability to work and have accrued to the plaintiff because of the alleged breach of Tbaytel.

[302] In light of the foregoing, the plaintiff is entitled to damages for past economic loss in the net amount of $193,719.

[303] In assessing the plaintiff’s damages for future economic loss, there is no reliable evidence as to when the plaintiff would have retired or if and when she may be able to work again. I therefore assess the plaintiff’s future economic loss based on the assumption that Ms. Colistro will not re-enter the workforce and that she retires at age 60. I also accept Dr. Hyatt’s calculations as to the plaintiff’s future wage increases for the reasons stated above in regard to past economic loss.

[304] The present value of the plaintiff’s future earning loss from May 1, 2016 to age 60 is $762,590, less the present value of future collateral benefits, being CPP disability benefits, LTD benefits as calculated by Dr. Moazzami, and waived OMERS contributions as calculated by Dr. Hyatt.

[305] I assess the plaintiff’s damages for future economic loss at $279,064, calculated as follows:

1. future earnings loss of $762,590;

2. less the present value of future CPP Disability benefits - $142,386;

3. less the present value of future LTD benefits - $263,324; and

4. less the present value of future OMERS PCDW - $77,817.

[306] The plaintiff submits that damages for past and future loss of housekeeping value should be assessed at $129,067 and $171,668 respectively, reflecting a past and future loss of housekeeping capacity of 50%. The plaintiff has led no evidence to support a claim for loss of housekeeping capacity. There was no direct evidence from Ms. Colistro on this issue. Mr. Colistro made a brief comment suggesting that the plaintiff did not cook meals anymore. Dr. Sullivan commented on the issue indirectly.

[307] To attempt to assess these damages in an evidential vacuum would be to engage in speculation which I am not prepared to do. This aspect of the plaintiff’s claim for damages is dismissed.

[308] I decline to award aggravated damages on the tort claim. In Hill, the Supreme Court instructed that aggravated damages are to be awarded only if it is found that the defendant was motivated by actual malice. In Stilwell v. World Kitchen Inc., 2014 ONCA 770, at para. 52, the Ontario Court of Appeal held that aggravated damages are to be awarded only to address “particularly reprehensible misconduct” by defendants. The evidence falls short of establishing that Tbaytel’s treatment of or conduct toward Ms. Colistro was malicious or “particularly reprehensible.” The claim for aggravated damages is dismissed.

[309] I also decline to award any punitive damages. The impugned conduct of Tbaytel, which I have found to be flagrant and outrageous, did not, in my opinion, rise to the level of malicious and oppressive conduct, so as to require an award of punitive damages in addition to the compensatory damages awarded.

[310] I am satisfied, on a balance of probabilities, that Tbaytel’s actions between January 29, 2007 and February 6, 2007 and their treatment of Ms. Colistro made her continued employment with Tbaytel intolerable such that she was constructively dismissed on February 6, 2007.

[311] In Shah, the Ontario Court of Appeal upheld the trial judge’s conclusion that constructive dismissal may be found where the employer’s treatment of the employee makes continued employment intolerable (See paras. 6 and 8).

[312] In Potter, the Supreme Court expressly accepted this statement of the law of constructive dismissal (See para. 33). The Court in Potter explained that this approach requires consideration of “the cumulative effect of past acts by the employer and the determination of whether those acts evince an intention no longer to be bound by the contract.” In General Motors, a “poisoned workplace” case, the Ontario Court of Appeal specifically referred to and endorsed Shah’s statement of the law.

[313] Mr. Diedrich had completed a structural reorganization at Tbaytel, the terms of which were announced on January 29, 2007. He had already hired Mr. Benoit for a VP position. Immediately on the heels of this announcement, he learned that Ms. Colistro “objected vehemently to the hiring of Mr. Benoit” and that “there was quite a bit of consternation in the ranks of the employees because of the reaction of the plaintiff to the hiring.” The evidence establishes that Mr. Diedrich was aware that the hiring of Mr. Benoit prompted a very significant negative reaction from the plaintiff and that Tbaytel employees were generally cognizant of the situation.

[314] Tbaytel conducted their investigation at the direction of Mr. Diedrich. At the conclusion of that summary investigation, Mr. Diedrich did not deviate from his original decision and chose to proceed with hiring Mr. Benoit. As he put it in his February 6, 2007 letter to the plaintiff, “I have come to the decision that there is no legal or other reason to not go forward with hiring Mr. Benoit.” To address Ms. Colistro’s “accusations,” he undertook to “discuss appropriate behaviour with Mr. Benoit” and to accommodate the plaintiff’s “needs.”

[315] The accommodation proposals have been reviewed. It was impossible for Tbaytel to employ the plaintiff and Mr. Benoit without the two of them potentially coming into contact with one another. Ms. Colistro found this unacceptable. It was not just that she was unable to tolerate even incidental contact with Mr. Benoit. Tbaytel had been her employer for approximately 20 years. Their position on the issue re-victimized the plaintiff and minimized the past conduct of Mr. Benoit in the eyes of the plaintiff and other Tbaytel employees.

[316] In my opinion, Tbaytel’s position, as enunciated in Mr. Diedrich’s February 6, 2007 letter to the plaintiff, was demeaning and dismissive: “I have come to the decision that there is no legal or other reason not to go forward with hiring Mr. Benoit…You may find that you are unable to accept my decision and, in that case, you will have to proceed as you see fit.” The issues raised by Ms. Colistro were not “accusations,” as suggested by Mr. Diedrich. Tbaytel chose to proceed with the hiring of an individual whom they knew had previously sexually harassed one of their apparently valuable employees, who had an unblemished 20 year history with the company and who was objecting “vehemently” to her abuser being hired. I find this to have been a blatant disregard for the interests of Ms. Colistro.

[317] The plaintiff bears the onus of establishing that Tbaytel’s conduct made her continued employment with them intolerable, taking into account accommodation proposals made. I am satisfied on a balance of probabilities that an objective reasonable bystander, aware of all the facts, would find that Ms. Colistro’s continued employment with Tbaytel in these circumstances was intolerable.

[318] I find that the plaintiff was constructively dismissed by Tbaytel on February 6, 2007 and is accordingly entitled to damages for wrongful dismissal.

[319] Ms. Colistro was 39 years old when she was constructively dismissed by Tbaytel. She started her employment with the City telephone department as a summer student in 1988 and had been a full time employee since 1990. At the time of her dismissal, Ms. Colistro was an executive assistant to a department manager, essentially a clerical position. There is no evidence before me as to the availability of similar employment in Thunder Bay.

[320] I accept the submission of Tbaytel that clerical employees are generally entitled to a shorter notice period than senior management. In my opinion, given the plaintiff’s age, her length of service and the character of her employment, 12 months would be a reasonable notice period.

[321] I have found that the 12 month notice period should begin on February 6, 2007. Her estimated annual remuneration at the time of her dismissal, inclusive of a December 2007 wage increase and the Short Term Incentive payment, was $59,490.

[322] The plaintiff’s salary was continued until May 18, 2007. This amounted to $19,408 being paid to the plaintiff. There is no evidence before me as to whether Ms. Colistro qualified for the OMERS PCDW during the salary continuance period of January 30, 2007 to May 18, 2007. I will assume that she did not.

[323] Ms. Colistro thereafter received LTD disability benefits during the remainder of the notice period, which the parties have agreed was in the amount of $3,256 per month, or $26,000 for the remainder of the notice period. The salary continuance and the LTD disability benefits must be deducted to determine her damages for wrongful dismissal. Ms. Colistro was not in receipt of CPP disability payments during the notice period.

[324] I therefore find that the plaintiff is entitled to damages for wrongful dismissal in the amount of $14,082, calculated as follows:

1. pay in lieu of notice in the amount of $59,490;

2. less salary continuance to May 18, 2007, in the amount of $19,408; and

3. less LTD benefits of $26,000.

[325] On the facts as I have found them, I am persuaded that the plaintiff is also entitled to Honda damages due to the manner of her dismissal. In the tort claim, I found that Tbaytel’s conduct toward Ms. Colistro was flagrant and outrageous. I also find Tbaytel’s treatment of Ms. Colistro was grossly unfair, unduly insensitive and in blatant disregard of her interests. The Court has the benefit of extensive expert medical evidence which establishes that Ms. Colistro has suffered actual damages as a direct result of the way in which she was treated by Tbaytel at the time of her dismissal.

[326] In all of the circumstances, I find that the plaintiff is entitled to Honda damages in the amount of $100,000.

[327] The medical evidence establishes that the plaintiff was not in a position to attempt to pursue alternate employment during the notice period. In my opinion, mitigation is not an issue in this case.

[328] There is nothing before me, either in the evidence or in the plaintiff’s submissions, to suggest that OHIP is pursuing a subrogated claim in this action. The evidence in support of this claim consists of two forms from the Ministry of Health filed in evidence through the plaintiff which she suggests establishes her medical attendances and the charges for same. This is insufficient to allow me to assess the merit of this claim and/or to quantify a proper amount, if any, to be awarded. This claim is dismissed.

[329] The City accepts that it bears vicarious liability, jointly with Tbaytel, for any compensatory damages awarded to the plaintiff. As a result, the City is jointly liable with Tbaytel for the damages awarded to the plaintiff under the tort claim, including general damages and damages for past and future economic loss. The City is also jointly liable with Tbaytel, for damages awarded to the plaintiff for wrongful dismissal, including the $100,000 in Honda damages, which are compensatory in nature.

COSTS

[330] If the parties are unable to agree on the costs of this action, they shall file written submissions as to costs, not to exceed 10 pages, exclusive of their respective Bills of Costs. The plaintiff’s costs submissions shall be filed within 14 days of the release of this decision; Tbaytel’s and the City’s within 7 days thereafter.

“original signed by”

Justice J. Fregeau

Released: June 16, 2017