Employment & Labour

MacDonald: updating Extraordinary Damages in Canadian Employment Law

By AdvocateDaily.com Staff

Toronto employment lawyer Natalie MacDonald is working on an update to her influential book, Extraordinary Damages in Canadian Employment Law.

MacDonald, principal of MacDonald & Associates, completed the original in 2010 but tells AdvocateDaily.com that she hopes to have the revised version available for publication by Carswell sometime in 2019.

“There have been some big changes in the case law which will feature strongly,” she says. “The book has been quoted in lots of decisions, and I keep hearing that people are waiting for the update, so it’s very exciting to be working on it.”

One case, which MacDonald successfully argued, Galea v. Walmart, decided in late 2017, will feature heavily in the update, according to MacDonald, who also acted for the plaintiff. It involved a woman regarded as a rising star in the boardroom of a major retailer before her unceremonious firing from a senior management position in 2010.

Ontario Superior Court Justice Michael Emery ordered her former employer to pay the woman $750,000, including $250,000 in moral damages, covering aggravated damages and damages for mental distress.

“It’s the leading decision now, and has really changed the landscape in terms of moral damages,” MacDonald says. “Before now, moral damages were not something that were readily provided by courts because of the danger of duplicate damages. But Justice Emery was very careful about how the damages were defined to ensure there was no overlap.

“It’s an incredibly important decision, not just for the amount of damages, but for its principles regarding manner of dismissal and, I’m told it is consistently cited in every case brief ever since,” she adds.

After a review of the case law on point by Emery, the judge also confirmed that “the state of the law in Ontario does not require a plaintiff to lead medical evidence to make out a case for damages for mental distress in an employment context.”

Instead, a claim for aggravated or moral damages “should be available to a claimant on all of the evidence given, including the subjective evidence of the plaintiff,” so long as other required elements of the claim are present.

“In the original book, I discussed the fact that I thought it was ridiculous to require medical evidence in every case to prove that bad faith conduct would result in mental distress, when you could see it objectively,” MacDonald says. “People experience grief in all kinds of different forms, so it makes no sense to have them running out to get medical appointments in order to tick boxes,” or have “checkpoint medicals”, as I have termed them.

In addition, MacDonald says several torts have undergone significant changes since the book’s publication, including the development of a privacy tort, formally known as intrusion upon seclusion, which was recognized for the first time in a landmark Ontario Court of Appeal judgment in 2012. Significant developments have also occurred related to the torts of intentional infliction of mental suffering and unlawful interference with economic relations, she adds.

MacDonald says the new book will expand upon the explosion of case law for human rights damages, which she says has undergone a transformation in the last decade.

“In the 1980s, you could only hope to get at the most $2,000.00 for damages for the right to be free from injury to dignity,” she says. “Now we’re getting into much more significant amounts, even as significant as $200,000.00, such that they might provide some deterrence, which is what I’ve always argued human rights legislation should be about.”

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