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Workplace Investigations




Treatment of sexually harassed employee grossly insensitive but Damages claimed were grossly excessive

Practice Areas: Workplace Investigations

To Ferraro - July 22, 2013 (00028655.DOCX;1)

In the recent decision of Colistro v. Tybatel, 2017 ONSC 2731, the Ontario Superior Court of Justice provided a lesson to employers about the seriousness of sexual harassment in the workplace. The plaintiff (Ms. Colistro) sought damages against Tbaytel and the City of Thunder Bay for constructive dismissal and intentional infliction of mental suffering. As will be discussed in further detail below, the Court significantly reined in the extraordinary damages sought by the plaintiff.

Tbaytel is a Municipal Services Board, a creature of stature created by the City of Thunder Bay to manage and provide the City’s telecommunication services. In 2007 a structural re-organization of Tbaytel led to Mr. Benoit (a former employee) being re-hired. Mr. Benoit had previously been the direct supervisor of Ms. Colistro and was terminated in 1996 following allegations of sexual harassment by Ms. Colistro and others. The re-hiring of Mr. Benoit was announced in a company meeting, which Mr. Colistro promptly exited and never returned.

The constructive dismissal claim sought the following with respect to damages:

  • $100,000.00 in reasonable notice damages;
  • $250,000.00 in “Wallace” damages (i.e. employer conduct during the dismissal); and
  • Damages for intentional infliction of mental suffering
    • $1,000,000.00 in general damages;
    • $401,567.64 for past economic loss;
    • $680,666.25 for future economic loss;
    • $64,533.70 for past loss of housekeeping value;
    • $85,834.23 for future loss of housekeeping value;
    • $500,000.00 for aggravated damages;
    • $300,000.00 for punitive damages

The Court agreed that Ms. Colistro had been constructively dismissed, and after applying necessary deductions, the Court assessed her wrongful dismissal damages at $14,082.00.  The tort claims however, are a different story.

The legal test for the tort of intentional infliction of mental suffering requires three elements to be proven:

  1. That there was flagrant or outrageous conduct;
  2. That the conduct was calculated to produce harm; and
  3. That the conduct resulted in a visible and provable illness.

Tbaytel’s conduct of proceeding with hiring Mr. Benoit, in light of the knowledge of the complaint and affect it was having on the plaintiff, was determined by the court to satisfy the first element. The third element was also established through medical evidence of ongoing PTSD and depression. The second element, however, was not established. The conduct, while “outrageous”, was not found to be “calculated to produce harm”. In other words, the plaintiff failed to establish the conduct was intentional with respect to the harm it produced. Therefore the plaintiff’s claim for over $3 million was dismissed. After dismissing the plaintiff’s claim for intentional infliction of mental suffering Justice Fredeau reviewed the damages requested and commented on the appropriateness of each. Justice Fredeau framed the $1 million in general damages as “grossly excessive” and set the value at $100,000.00 if her claim had been successful. The Court also completely dismissed the notion that aggravated or punitive damages would have been appropriate in the circumstances. Tbaytel’s conduct, while outrageous, was not considered malicious or oppressive. The Court also reduced the damages for past and future economic losses to $193,719.00 and $279,064.00 respectively.

The Court did find favour in Ms. Colistro’s claim of constructive dismissal and the manner in which her dismissal was carried out. Ms. Colistro was a 20 year employee, 39 years old at the time of the alleged dismissal, and working as an administrative assistant. The hiring of Mr. Benoit and the treatment of Ms. Colistro in the process was found to make continued employment intolerable. The decision to re-hire Mr. Benoit after investigating the very negative reaction from Ms. Colistro was outrageous and “a blatant disregard for the interests of Ms. Colistro.” The accommodation efforts to limit contact between Ms. Colistro and Mr. Benoit and Tbaytel’s 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.” In addition to the wrongful dismissal damages noted above, the Court ordered the employer to pay $100,000.00 in damages for Tbaytel’s unduly insensitive and grossly unfair treatment of Ms. Colistro.

As an employer, the treatment of sexual harassment complaints is of paramount importance for the health and well-being of your employees and can result in significant damages awards when handled improperly. The lawyers at CCP can assist you with investigating complaints of workplace harassment or sexual harassment and ensure you understand your obligations with respect to accommodating employees.


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