This is the appeal of the Prinzo v. Baycrest decision. The basic facts of the egregious treatment of Prinzo by the employer (including Mr. David Mahy - now employed by Trent University as Associate Vice President of Human Resources) remained unchallenged.

The summary is printed below. The full text is available in html format at CanLII or in pdf format.

   Employment — Wrongful dismissal — Damages — Intentional infliction of mental harm — Damages for mental distress may be awarded in employment context provided that employer's acts constitute independent actionable wrong — Employer gave employee notice that her position would be eliminated at some uncertain future date — Employee suffered work-related injury and was unable to work — Employer contacted employee persistently to urge her to return to work to perform modified duties — Employer implied that employee's doctor had agreed to her return to work when he had not in fact done so — Employer advised employee that failure to return to work would constitute work refusal — Employer aware that employee suffered emotional upset and anxiety as result of calls — Employee experienced increased blood pressure, weight gain and exacerbation of diabetes symptoms as result of employer's conduct — Employee entitled to damages in amount of $15,000 for intentional infliction of mental suffering.

   Employment — Wrongful dismissal — Damages — Punitive damages — Employer caused employee anxiety and emotional upset by contacting her persistently when she was off work as result of work-related injury and urging her to return to work to perform modified duties — Employer persisted in this conduct despite awareness of effect that conduct had on employee — Trial judge awarded employee damages for mental distress in employee's wrongful dismissal action — Trial judge erred in also awarding punitive damages for harassment of employee — That conduct had already been compensated by award of damages for mental distress.

   Employment — Wrongful dismissal — Notice — Notice of termination — Termination letter which stated that employment was to end on date to be determined in future discussions did not constitute effective notice of termination.

   Employment — Wrongful dismissal — Reasonable notice — Employee worked for employer for 17 years as manager of beauty shop — Employee performed hands-on hairdressing work as well as managerial functions — Trial judge erred in fixing reasonable notice period at 18 months — Trial judge erroneously took employer's reasons for eliminating employee's position into account in determining length of notice — Trial judge failed to take into account fact that employee knew that her employment would soon end well before she received official notice — Reasonable notice period was 12 months. [page475]

   The plaintiff was employed by the defendant for 17 1/2 years as the manager of the defendant's beauty shop. In November 1997, she received a "Letter of Layoff" indicating that her position was being eliminated because of financial constraints and stating that the effective date for elimination of the position would be determined over the next few weeks. Shortly before receiving this letter, the plaintiff had suffered injuries in a slip and fall in the defendant's parking lot. She was off work until February 1998 and was unfit for any form of work during this period. Throughout this period, the defendant persistently urged the plaintiff to return to work, at one point falsely implying that the plaintiff's doctor had agreed that she was fit for work. The plaintiff's lawyer wrote a letter to the defendant describing the stress and anxiety which the defendant's conduct was causing the plaintiff and requesting that all communications be directed to him until further notice. The defendant continued to contact the plaintiff directly. On the day of the plaintiff's return to work, four representatives of the defendant met with the plaintiff alone for over two hours and, over the plaintiff's protest that she was in no condition to address the subject, insisted on talking about termination. The plaintiff did not receive formal notice of termination until March 11, 1998, when she was given a letter indicating that her last day of employment would be March 31, 1998. The plaintiff brought an action for damages for wrongful dismissal. The trial judge allowed the action, holding that the appropriate notice period was 18 months and that the plaintiff was given notice of termination in November 1997 when she received the "Letter of Layoff". The trial judge awarded the plaintiff aggravated damages in the amount of $15,000 for mental distress and punitive damages of $5,000. Costs were awarded to the plaintiff on a solicitor-and-client basis. The defendant appealed. The plaintiff cross-appealed the starting date of the notice period and sought an increase in the award of punitive damages.

   Held, the appeal and the cross-appeal should be allowed in part.

   Notice of termination must lead a reasonable person to conclude that his or her employment is at an end as of some date certain in the future. The Letter of Layoff of November 1997 did not provide a date certain when the plaintiff's position would be eliminated. Given the trial judge's finding that notice of termination was not clear and unequivocal, and having regard to the fact that a date certain for termination was not given until March 11, 1998, the trial judge erred in concluding that the effective date for notice of termination was November 1997. The effective date for notice of termination was March 11, 1998.

   The trial judge drew an inference that the desire to get rid of a troublesome employee was a much greater motivating factor in the decision to terminate the plaintiff's employment than the need to cut costs. He took that factor into consideration in concluding that the reasonable notice period was 18 months. He erred in doing so. The defendant's reason for eliminating the plaintiff's position was not a relevant consideration in determining the length of notice. Moreover, the fact that the plaintiff knew well before March 11 that her employment would soon end was a consideration affecting the length of notice. A reasonable notice period in the circumstances was 12 months.

   Any award of damages beyond compensation for breach of contract for failure to give reasonable notice of termination must be founded on separately actionable conduct. Damages for mental distress may be awarded in the employment context, provided that the employer's acts constitute an independent actionable wrong. The trial judge correctly found that there was a separately actionable wrong in this case, the tort of intentional infliction of mental suffering. The elements of that tort are: (1) flagrant or outrageous conduct; (2) calculated to produce harm; and (3) resulting in a visible and probable illness. The trial [page476] judge found that the acts of harassment by the employees of the defendant were so extreme and insensitive that they constituted a reckless and wanton disregard for the plaintiff's health. The defendant's conduct was flagrant and outrageous. It was also calculated to produce harm. For conduct to be calculated to produce harm, either the actor must desire to produce the consequences that follow, or the consequences must be known by the actor to be substantially certain to follow. The trial judge found that the defendant's employees were well aware of the physical and emotional health of the plaintiff and realized the detrimental effect their harassment would have on her, yet they persisted in that harassment with almost sadistic resolve. Lastly, there was evidence of a visible and provable illness caused by the defendant's actions. The trial judge had before him the evidence of the plaintiff's doctor that the conduct of the defendant's employees caused her emotional upset, increased her blood pressure, resulted in significant weight gain and increased her diabetes symptoms. It would have been preferable if the trial judge had not characterized his award of damages for mental suffering as aggravated damages. The damages did not arise from the dismissal itself, but rather from the defendant's conduct before the dismissal. However, the award of $15,000 for intentional infliction of mental suffering was appropriate.

   The trial judge gave no reason for his award of punitive damages in addition to his award of damages for mental distress. The misconduct found against the defendant was its harassment of the plaintiff constituting the tort of intentional infliction of mental suffering. That conduct had already been compensated by the award of damages for mental distress. Punishment in the form of an award of punitive damages was not necessary for deterrence purposes. The award of punitive damages served no rational purpose.

   The trial judge provided no reasons for awarding the plaintiff solicitor-and-client costs. As a general rule solicitor-and-client costs are awarded on very rare occasions such as when a party has displayed outrageous conduct during the proceedings. On occasion, reasons of public interest may also justify the making of such an order. Costs on a solicitor-and-client scale are not to be awarded as damages. They are awarded to mark the court's disapproval of the conduct of a party during the litigation. The trial judge erred in awarding solicitor-and-client costs because there was no basis in the record for such an award.