Accounting for Law
Employment & Labour

Forty-day trial nets $141,000 ‘win’

By Barry B. Fisher

In Merrifield v. Canada (Attorney General) 2017 ONSC 1333, Justice Vallee heard a case involving serious allegations of harassment against an RCMP officer by his superiors over a number of years.

The trial took 40 days and stretched out from November 2014 to April 2016. The record shows five lawyers for the parties.

In an 896 paragraph decision, the plaintiff won and was awarded two heads of damages:

1. The plaintiff’s rise in rank had been delayed for 18 months, resulting in a career wage loss of $41,000.

2. For the tort of intentional infliction of mental suffering, the court had this to say:

What amount should be awarded to Mr. Merrifield for general damages?

Analysis

877. Amounts awarded for damages for intentional infliction of mental suffering and harassment have increased significantly since the 1990s.

878. In Clark v.Canada, [1994] 3 F.C. 323, 3 C.C.E.L. (2d) 172, a female member of the RCMP was harassed by her male co-workers. She was told to be a “real woman” and go home and have children. Her co-workers watched pornographic movies while she was in the office. Plastic breasts were left on her desk. When her body armour was delivered, it was set up with a mocking note attached to it. These are a few examples of what the plaintiff endured. When she complained to her supervisors, they were dismissive. These events caused her to have a documented mental health crisis. She resigned her position.

879. The court reviewed awards for intentional infliction of nervous shock prior to 1994, considered a “reasonable measure of consolation” for her particular mental condition and awarded the plaintiff $5,000. The defendants’ state that based on this decision, if Mr. Merrifield is entitled to damages, the amount should be nominal.

880 .The plaintiff relies on four cases decided between 1997 and 2014. They are Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R.701, Tipple v. Canada (Attorney General), 2012 FCA 158, 431 N.R. 257, 158, Joseph v. Tl’azt’en First Nation, 2013 F.C. 767, 9 C.C.E.L. (4th) 173 and Boucher v. Wal-Mart Canada Corp. The defendants state that these cases are not applicable because the plaintiffs were either terminated or constructively dismissed.

881. I disagree with the defendants’ position. In all of these cases, the court considered the events leading up to the termination or constructive dismissal. The defendants’ actions caused the plaintiffs to suffer from mental health conditions. Damages were awarded to the plaintiffs for mental suffering. I find that these cases are relevant and helpful on this issue.

882. In Wallace, the Supreme Court of Canada determined that the trial judge had discretion to extend the notice period with respect to the termination. The possibility of recovery for mental health damages remained. It noted that a tort for breach of good faith and fair dealing regarding a dismissal was not yet recognized.

883. In Tipple, the employer alleged that the plaintiff’s actions were a form of misconduct. The matter attracted a considerable amount of media attention. The court found that the allegations were unfounded. In the interval, the plaintiff had suffered a significant loss of reputation. He was awarded $250,000 for the loss of reputation and $125,000 for the psychological injury that he sustained as a result of the manner of his termination.

884. In Joseph, an employer made vile and serious allegations of fraud upon the employee’s termination. This resulted in significant damage to the employee’s reputation. The employee had considerable difficulty in finding other employment. Prospective employers stated that the plaintiff had to be vindicated before they would consider hiring him. The court awarded $85,000 for damage to the employee’s physical health, well-being, integrity, dignity and personal and professional reputation.

885. In Boucher, the plaintiff was a cheerful and productive employee. When the personal defendant became her supervisor, he belittled, humiliated and demeaned the plaintiff in front of others continuously and relentlessly for approximately six months. She complained of her supervisors actions to management who determined that her complaints were unfounded and told her that she would be held responsible for making them. The plaintiff became broken and defeated. She suffered from a number illnesses including depression. A jury awarded the plaintiff $100,000 for intentional infliction of mental suffering. The award was upheld on appeal.

886. Mr. Merrifield suffered from significant depression and post-traumatic stress disorder as a result of the actions taken by the RCMP. He was unable to work for various periods of time. At one point, he disengaged from his family and spent his days lying on a sofa. He did not bathe and developed bed sores. His depression during these periods deprived him of meaningful interaction with his wife and young children. It deprived him of successful performance in a job that he loved and for which he was acknowledged to be a national expert. It also deprived him of the gratification of positive interaction and collaboration with his colleagues.

887. Not only did Mr. Merrifield suffer from significant mental health issues as a result of the actions taken by the RCMP, those actions also stained his reputation. A number of people knew that he had been removed from national security work. They assumed that he had done something wrong. Even Insp. Van Doren, who was not Mr. Merrifield’s supervisor, knew that he had been removed from national security work. As a result of this, he considered Mr. Merrifield to be unsuitable to work at the SOC during a national security emergency.

888. Supt. Proulx accused Mr. Merrifield of using his Amex card for personal reasons, in other words stealing money from the RCMP. Sgt. Dickinson interviewed a number of people during the Part IV investigation. All of them knew the serious allegations against Mr. Merrifield which were tantamount to criminal conduct. The allegations were insidious. For example, Supt. Jagoe still believes that the allegations were substantiated. Just as the news of Mr. Merrifield’s removal from national security work spread among the RCMP management and other members, so too would the allegations of disgraceful conduct. Sgt. Dickinson stated that the members that he interviewed would not have known of the outcome of the Part IV investigation or that the allegations were unfounded.

Conclusion

889 Taking all of this into account, I award Mr. Merrifield general damages against the defendants for harassment and intentional infliction of mental suffering in the amount of $100,000.

One cannot begin to imagine the legal fees involved in this case. I do not know what has or will happen at the costs stage or if the AG was smart enough to put in a Rule 49 offer of more than $141,000 well before the trial.

If they did, (and as a taxpayer I sure hope they did) the cost award in their favour would easily wipe out the $141,000 award and the plaintiff would owe a considerable amount to the Crown for costs.

If the plaintiff put in a Rule 49 offer and beat it, well then the plaintiff’s costs will dwarf the award.

I have not seen the pleadings but I cannot imagine that a plaintiff would launch an action of this enormity and only expect to receive $141,000.

So here we have it. A legal process that costs hundreds of thousands of dollars that in the end results in the transfer of $141,000 from one party to another, maybe.

How is this process proportional as required by Rule 1.04 of the Rules of Civil Procedure?

INTERPRETATION

General Principle

1.04 (1) These rules shall be liberally construed to secure the just, most expeditious and least expensive determination of every civil proceeding on its merits.  R.R.O. 1990, Reg. 194, r. 1.04 (1).

Proportionality

(1.1) In applying these rules, the court shall make orders and give directions that are proportionate to the importance and complexity of the issues, and to the amount involved, in the proceeding.  O. Reg. 438/08, s. 2.

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