The issue of damages for mental suffering or “aggravated” or “moral” damages has received considerable attention recently due to many significant such awards.[1]

Expert Evidence not a Pre-requisite

The issue of the need for expert evidence showing a diagnosed medical illness was considered by the Supreme Court of Canada[2] last year. In this decision, the Court answered this question in the negative and determined that the evidence of friends and family may be sufficient to prove the existence of a medical injury.

While it may be certainly preferable to prove such a claim in an employment case by medical evidence, it is similarly not mandated.

The Test

To show a claim for aggravated damages, the plaintiff must prove:

  1. The employer showed conduct at the time of termination which was contrary to the duty of fair dealing; and
  2. This behaviour caused mental distress; and
  3. Such distress was more than might be anticipated in what would normally be expected from such a termination; and
  4. There must be real demonstrable evidence of the mental distress.

This last particular issue was recently reviewed by a Court of Appeal decision from British Columbia.[3]

In this case, the trial award of $15,000 was set aside. The Court of Appeal noted that there was a lack of evidence from family, friends of other third parties of the impact of the alleged wrongdoing on the plaintiff. There was testimony of the plaintiff by which she described the immediate impact upon her, namely, that she “went numb” at the termination meeting because she was so upset.

This evidence was determined to fall short of the requirement that the plaintiff show a “serious and prolonged disruption that transcends the ordinary emotional upset or distress”.

The case is illustrative of not only the standard of mental distress to be proven, but also how this should be done. Clearly medical evidence would be the ideal means of showing this, but in its absence, the observations of family and friends would appear to necessary to buttress the plaintiff’s own evidence.

Employers View

Claims of aggravated damages can cause considerable liability and unneeded media attention. Such claims can also impact existing staff members. The clear straight line defence is preventive action to ensure a fair minded work place.

Where such claims do arise, an awareness of this test will assist in the defence at trial.

Employees Take Note

As noted above, the obvious best practice is a medical report to prove the claim. Where this is not possible, the direct testimony of credible unbiased third parties will be required.

Get Advice and Know Your Rights

Whether you be employer or employee, this question of aggravated damages may be significant. It is fundamental to know the law and your rights and remedies. For advice on this issue from either side, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.



[1] For example, the award of $250,000 in Galea v Wal-Mart

[2] Saadati v Moorhead This was a case alleging damages from a car accident.

[3] Cottrill v Utopia Day Spas A Court of Appeal decision from B.C. is not binding on an Ontario trial judge but is nonetheless considerably influential.