Emotional distress: can you sue your employer in Canada?

In Canada, as everywhere else, employees face many pressures, and emotional distress is one of them. When an employee suffers as a result of inappropriate treatment, they have the right to take legal action. The situation can be caused by many factors, including harassment by co-workers, abuse by supervisors or bad-faith conduct by management. These disputes are increasingly common. According to Canadian mental health specialists, the damages awarded have risen sharply over the past two decades. For the claim to be admissible, the mistreatment must be serious enough, legal experts say.

The fact is that successful compensation claims are rare. According to an employment lawyer, these complaints are often part of a wrongful dismissal action.

What do legal experts say?

According to a Toronto lawyer: it is not simply a matter of resentment at being dismissed. The employer must have breached its duty of good faith.

“The law recognizes that losing your job is always painful,” explains another expert. However, if something improper was done to you during the dismissal, you may have a valid claim for aggravated or moral damages because of the way the dismissal was carried out.

Conduct that can justify such a claim includes:

• Dismissing an employee after they filed a harassment complaint, without investigating the complaint;
• Dismissing an employee accused of wrongdoing without giving them an opportunity to respond;
• A bad-faith dismissal intended to avoid paying legal entitlements or to damage the employee’s reputation;
• Humiliating or publicly shaming the employee, or dismissing them in that way;
• Dismissing a person who is on sick leave.

More specifically, the employer must have acted inappropriately and in bad faith for an employee to obtain damages for mental distress. That said, the following points apply:

• The employee is not required to provide medical evidence to prove their situation in court, although it is considered wise to do so.
• Damages awarded in a wrongful dismissal action are generally limited to compensating the loss suffered. The absence of reasonable notice is a second condition for the claim to succeed.
• The former employee can claim aggravated or moral damages for mental suffering, but only if the way they were dismissed caused that suffering.

What can you do in the case of negligence?

Employees can also consult a legal professional to bring an action for negligently inflicted mental suffering. This is possible when the manager’s conduct falls below the standard of reasonable care.

These complaints are often filed following harassment by senior managers, but harassment can also come from co-workers. The employer is required by law to investigate harassment complaints; otherwise, it may be penalized by the labour authorities. The employee can also take legal action for mental suffering caused by negligence.
Employees may also be victims of unfair treatment in the workplace. When this causes mental suffering, it can amount to constructive dismissal: the boss did not dismiss the employee, but made the conditions of employment unacceptable, so that the contract was in effect broken. The victim can then claim damages for wrongful dismissal and aggravated or moral damages for the way the dismissal was carried out.

What about intentional infliction?

Canadian employees can also take legal action for the intentional infliction of mental distress. The victim must prove, on the one hand, that the employer or co-worker engaged in disrespectful or outrageous conduct and, on the other hand, that this conduct caused a visible illness that can be confirmed by a doctor. This illness does not have to be as serious as a recognized psychiatric illness. In addition to medical evidence, the plaintiff can also present evidence from relatives showing a clear change in behaviour.
Finally, employers must put in place effective policies (codes of conduct, etc.) to prevent harassment and other improper behaviour in the workplace. Employees can rely on these rules and on the law to write and file internal complaints.