COURT FILE NO.: CV-18-603979 DATE: 2019-02-26 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: HEIDI BASSANESE, Plaintiff AND: GERMAN CANADIAN NEWS COMPANY LIMITED and ANIZ DHANANI, Defendants

BEFORE: Sossin J.

COUNSEL: Maria Esmatyar, Counsel, for the Plaintiff

HEARD: February 6, 2019

Reasons for Decision

Overview and Facts

[1] The plaintiff, Heidi Bassanese (“Bassanese”), brought this motion for default judgment against the defendants, German Canadian News (“GCN”) and Aniz Dhanani (“Dhanani”). Bassanese has now settled the dispute with Dhanani and continues the motion for default judgment solely against GCN. Bassenese also seeks costs for this motion from GCN.

[2] GCN is a corporation carrying on business in the field of retailing and distributing magazines and newspapers from Germany.

[3] Bassanese worked in an administrative position with GCN for approximately 19 years. Her duties included filing, reviewing and responding to correspondence, preparing and printing invoices to customers, taking orders for subscriptions, preparing orders, and related administrative tasks. She was 73 years of age at the time of her dismissal and earned approximately $75,000.00 annually.

[4] Dhanani was employed at GCN as an accounts receivable clerk.

[5] Bassanese alleges that Dhanani was abusive, harassing and unprofessional towards her over a prolonged period of time. On several occasions over April and May of 2018, Bassanese complained to Chris Perske (“Perske”), the President of GCN, about Dhanani’s conduct.

[6] On April 17, 2018, Bassanese wrote to Perske about “being constantly harassed by [Dhanani] yelling and screaming at me … telling me that I am an idiot and that I should be fired, etc, etc.” She added, “I am sorry Chris. I have never ever filed a complaint but I want you to step in and make sure this never happens again.”

[7] Perske wrote back to Bassanese the same day, on April 17, 2018, stating, “Sorry to hear that. We’re a little short-staffed this week (2 illnesses, 1 sick child and a vacation) but I’ll run it by Anne Marie, she’s our HR person.”

[8] Bassanese followed up with Perske again on May 7, 2018 and May 8, 2018. Perske responded on May 8, 2018 to indicate he had raised the issue with Anne Marie and that he would take further steps.

[9] On May 15, 2018, Bassanese again wrote to Perske to complain about Dhanani’s ongoing, inappropriate conduct, concluding, “I am writing to you again to let you know that I am at my wit’s end and would like some sort of action to take place. I do not deserve to work in an environment where people are allowed to constantly yell and say inappropriate insults to me. Please look into this matter.”

[10] There was an additional exchange between Bassanese and Perske on May 28, 2018, but no further action by GCN was forthcoming.

[11] On June 21, 2018. Bassanese alleges Dhanani slapped her across the face three times. On this occasion, Bassanese complained to GCN’s Managing Director, and a police report was filed. Her employment was terminated that same day. She alleges that her employment was terminated by the Managing Director in retaliation for this complaint. She was not provided notice or compensation for the loss of employment benefits.

[12] On August 24, 2018, Bassanese commenced this action against the defendants.

[13] On October 17, 2018, Dhanani responded with an Amended Statement of Defence and Counterclaim.

[14] On November 30, 2018, Bassanese responded with a Reply and Defence to the Statement of Defence and Counterclaim.

[15] On February 5, 2019, Bassanese and Dhanani reached a settlement, and the Claim with respect to Dhanani and the Counterclaim are to be dismissed without costs.

[16] GCN has not filed or served a Statement of Defence, and was noted in default on October 5, 2018. GCN was served with the motion record for default judgment on December 20, 2018.

[17] This motion concerns Bassanese’s entitlement to compensation in lieu of notice and damages against GCN.

Analysis

Default Judgment

[18] Under Rule 19.02 of the Rules of Civil Procedure, R.R.O. 1990, Reg 194, a defendant who has been noted in default is deemed to admit the truth of the allegations made in the statement of claim. On a default judgment motion, the Court will undertake an inquiry into:

a. What deemed admissions of fact flow from the Statement of Claim; b. Whether the deemed admissions in fact entitle the plaintiff, as a matter of law, to judgment; and c. If not, has the plaintiff adduced admissible evidence which, when combined with the deemed admissions, entitles the plaintiff to judgment.

[19] In her Statement of Claim, Bassanese alleges she is entitled to:

a. Compensation in lieu of notice for wrongful dismissal; b. $100,000.00 for assault and battery; c. $100,000.00 for intentional infliction of mental suffering d. $250,000.00 for aggravated and moral damages for the bad faith conduct of the defendants; e. $250,000.00 for punitive damages; and f. Costs.

[20] I consider each of these claims below.

Wrongful Dismissal

[21] Bassanese seeks compensation in lieu of reasonable notice, and the payment of statutory benefits pursuant to the Employment Standards Act, 2000 S.O. 2000, c. 41 (“ESA”).

[22] The reasonableness of notice is determined with reference to what has come to be known as the Bardal factors: the nature of employment, length of service, age of the employee and availability of similar employment (Bardal v. Globe & Mail Ltd. , 24 D.L.R. (2d) 140 (Ont. H.C.), at p. 145).

[23] Generally, a longer notice period will be justified for older long-term employees, who may be at a competitive disadvantage in securing new employment because of their age (see Fisher v. Hirtz , 2016 ONSC 4768, at para. 59).

[24] Notwithstanding the challenges inherent in seeking out a new position in these circumstances, the record is clear that Bassanese has made reasonable efforts to mitigate through seeking new employment.

[25] In Kapelus v. University of British Columbia, 1998 CarswellBC 1457 aff’d, dealing with broadly analogous circumstances, the Court awarded a University administrative assistant with 20 years of service a notice period of 19 months.

[26] I find that compensation for Bassanese of 19 months of salary in lieu of notice is appropriate in the circumstances of this case.

[27] Bassanese is also entitled to statutory benefits over this period. In Camaganacan v. St. Joseph Printing Ltd., 2010 ONSC 5184, at para. 23, Whitaker J. found employment benefits at 10% of salary over the notice period is reasonable. I find the same scale of benefits is applicable in this case.

[28] In light of the 19 months compensation in lieu of notice, and 10% of salary for employment benefits over this period, Bassanese is entitled to $129,433.17.

Assault and Battery

[29] Given that the claim with respect to Dhanani in her personal capacity has been settled, Bassanese claims that GCN should be held vicariously liable for the assault Dhanani allegedly committed against Bassanese.

[30] In Piresferreira v. Ayotte , [2008] O.J. No. 5187 (“Ayotte”), Aitken J. found a corporation vicariously liable for assault and battery after a supervisor shoved an employee, where the corporation had entrusted a supervisory role to an employee, and where the assault took place in the course of the employee discharging her supervisory role. The trial judge in Ayotte focused on the vicarious liability of an employer who fails to provide a safe working environment.

[31] This aspect of the trial judgment in Ayotte was upheld on appeal (2010 ONCA 384 leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 283), with damages set at $15,000.00.

[32] I find the slap pleaded in this case to be analogous to the shoving incident in Ayotte. I set damages for assault and battery incident on June 21, 2018 at $15,000.00 on the basis of GCN’s vicarious liability.

Intentional Infliction of Mental Suffering

[33] The Court of Appeal set out the test for the tort of intentional infliction of mental suffering in Boucher v. Wal-Mart Canada Corp. , 2014 ONCA 419 (“Boucher”). That test has three elements. The plaintiff must prove:

a. The defendant’s conduct was flagrant and outrageous; b. The defendant’s conduct was calculated to harm the plaintiff; and c. The defendant’s conduct caused the plaintiff to suffer a visible and provable illness.

See also Prinzo v. Baycrest Centre for Geriatric Care , 60 O.R. (3d) 474 (C.A.).

[34] In her Statement of Claim, Bassanese pleads that the actions of Dhanani were “flagrant and outrageous,” and that the Dhanani’s behavior caused her “anxiety, stress and emotional upset.” Bassanese further pleads that she “experienced mental suffering from the abusive manner in which Dhanani treated her during her employment.”

[35] Bassanese submits that as a result of the circumstances of her termination, she has suffered from fear of going to work and the erosion of self-esteem.

[36] The allegations in the pleadings, in my view, meet the standard set under the first prong of the Boucher test.

[37] I am not satisfied, however, that the second or third prongs of the test for the intentional infliction of mental suffering are met. Specifically, there is no evidence of a visible and proven illness in the pleadings or in the record.

[38] Consequently, Bassanese is not entitled to damages based on the tort of intentional infliction of mental suffering.

Aggravated Damages

[39] Aggravated damages are awarded because of the nature of the defendant's conduct. They are designed to compensate the plaintiff specifically for the “additional harm caused to the plaintiff's feelings by reprehensible or outrageous conduct on the part of the defendant.” Whiten v. Pilot Insurance Co. , 2002 SCC 18 (“Whiten”), at para. 116.

[40] Bassanese submits that a series of actions taken in “bad faith” cumulatively justify aggravated damages. These include:

a. GCN’s failure to remit Bassanese’s statutory benefits under s.57 of the ESA; b. GCN’s failure to launch an investigation on Bassanese’s complaint; c. GCN’s termination of employment as a reprisal within the meaning of s.50 of the Occupational Health and Safety Act R.S.O. 1990, Chapter O.1 (“OHSA”); d. GCN’s failure to provide Bassanese with a letter of reference or assist in obtaining alternative employment; and e. GCN’s failure to provide a subsidy for relocation/retraining counselling.

[41] Bassanese relies on Keays v. Honda Canada Inc. , 2008 SCC 39, [2008] 2 S.C.R. 362 (“Keays”) and Boucher for the availability of aggravated and moral damages in this context.

[42] Keays, however, involved a dismissal situation where the Supreme Court found that aggravated and moral damages were not warranted. In describing a situation where such damages would be available, Bastarache J., writing for the Court, stated (at para. 59):

Examples of conduct in dismissal resulting in compensable damages are attacking the employee’s reputation by declarations made at that the time of dismissal, misrepresentation regarding the reason for the decision, or dismissal meant to deprive the employee of a pension benefit or other right, permanent status for instance…

[43] In Boucher, the Ontario Court of Appeal applied Keays in a context in which an award of substantial aggravated damages in a context of dismissal were upheld. Laskin J.A., writing for the majority, affirmed aggravated damages of $200,000.00 against the employer, Wal-Mart, based on the following circumstances (at para. 72):

Wal-Mart took no steps to bring an end to Pinnock’s misconduct. It did not take Boucher’s complaints seriously, finding them unsubstantiated despite substantial evidence from co-workers that they were well-founded. It failed to enforce its workplace policies, which on their face were designed to protect employees from the kind of treatment Pinnock subjected Boucher to. And it threatened Boucher with retaliation for making her complaints, an especially vindictive act.

[44] The allegations as pleaded by Bassanese are less egregious that those found against Wal-Mart in Boucher. The overt acts of vindictiveness cited in Boucher are not present in the facts as pleaded in the Statement of Claim. Bassanese has not pleaded that attempts were made to disparage her reputation at the time of dismissal, or threaten Bassanese for making her complaints. Rather, the central complaint about the dismissal and its lead-up is that GCN ignored her complaint and neglected to investigate the complaint or take steps to address Dhanani’s inappropriate conduct.

[45] Nevertheless, this neglect in the face Bassanese’s heightened frustration and anxiety as the work environment became more toxic warrants aggravated damages.

[46] I find Bassanese is entitled to aggravated damages of $50,000.00.

Punitive Damages

[47] Bassanese’s Statement of Claim states that GCN’s treatment of her, in addition to being a breach of her employment agreement, was callous, harsh, wanton, reckless and unwarranted and has resulted and will continue to result in serious emotional upset, stress, frustration, humiliation and fear, in respect of which she claims $250,000.00 as punitive damages.

[48] The Supreme Court of Canada stated in Whiten v. Pilot Insurance Co ., 2002 SCC 18, [2002] 1 S.C.R. 595 (“Whiten”), that the purposes of punitive damages relate to retribution, denunciation and deterrence (para. 111). Writing for the majority of the Court, Justice Binnie described punitive damages in the following terms (at para. 36):

Punitive damages are awarded against a defendant in exceptional cases for “malicious, oppressive and high-handed” misconduct that “offends the court’s sense of decency”: Hill v. Church of Scientology of Toronto , [1995] 2 S.C.R. 1130, at para. 196. The test thus limits the award to misconduct that represents a marked departure from ordinary standards of decent behaviour. Because their objective is to punish the defendant rather than compensate a plaintiff (whose just compensation will already have been assessed), punitive damages straddle the frontier between civil law (compensation) and criminal law (punishment).

[49] In addition to establishing that the conduct at issue meets this high standard a plaintiff must also demonstrate that the punitive damages award, when added to any compensatory award, is rationally required to punish the defendant and to meet the objectives of retribution, deterrence and denunciation (Boucher, at para. 79).

[50] In Boucher, Laskin J.A. emphasized that a finding of punitive damages must be rooted in the employer’s own conduct, not in vicarious liability for the actions of the employee (at para. 82). Nonetheless, Laskin J.A. found the jury’s conclusion to be reasonable that Wal-Mart’s own conduct was “reprehensible.” That conclusion was based on Wal-Mart’s refusal to take the employee’s complaints seriously, its dismissal of those complaints notwithstanding substantial evidence to support the complaint, its unwillingness to discipline the employee complained about, or intervene to present continuing mistreatment, and its threatened reprisal and failure to follow its own workplace policies (at para. 84).

[51] In a subsequent employment context, the Ontario Court of Appeal increased a trial judge’s punitive damages award where an employer refused to accommodate a disabled employee, and engaged in bad faith conduct for years designed to compel her to resign her employment, as well as being “victimized” both prior to and after her termination (see Strudwick v. Applied Consumer & Clinical Evaluations Inc. , 2016 ONCA 520).

[52] In Keays, Bastarache J. distinguished punitive damages from damages for conduct in the manner of dismissal, so as to avoid duplication in damage awards. He stated that (at para. 62):

[d]amages for conduct in the manner of dismissal are compensatory; punitive damages are restricted to advertent wrongful acts that are so malicious and outrageous that they are deserving of punishment on their own.

[53] In light of the applicable legal standards, I do not find the circumstances of this case represents an exceptional case where the actions of GCN meet the high standard set for wrongful acts deserving of punishment on their own, or where such an award of punitive damages, in addition to the compensatory damages to which I have found Bassanese entitled, is rationally required to punish GCN in order to meet the objectives of retribution, deterrence and denunciation.

[54] Given the amount of the compensatory damages to which Bassanese is entitled, in relation to the relatively small size of GCN, and the less egregious conduct of GCN over a shorter period of time as compared to other cases in which punitive damages have been awarded, I conclude an award of punitive damages is not appropriate in this case.

Conclusion

[55] For the reasons above, Bassanese is entitled to compensation in lieu of notice and damages from GCN totaling $194,433.17.

[56] Costs of this motion are fixed at $10,000.00, all inclusive, payable by GCN to Bassanese within 30 days.

Sossin J. Released: February 26, 2019