Awful Treatment Calls for an Awfully Large Award

November 14th, 2014 by

In Boucher v Wal-Mart Canada Corp, a Wal-Mart assistant manager was treated so terribly by her supervisor and her employer that she received an unprecedented award for aggravated damages.

Boucher and her supervisor had a good working relationship until her supervisor asked her to alter the temperature logs of food and dairy products stored in the store’s coolers. When Boucher refused this request, her supervisor made her attend a disciplinary “coaching session.”

Upset by this, Boucher used Wal-Mart’s confidential open door communication policy to report the incident. However, the supervisor found out about the meeting and then began to torment Boucher. In the following months, Boucher was belittled, humiliated and demeaned constantly in front of other employees. Evidence of other employees revealed that the supervisor’s admitted purpose of his torment was to force Boucher to quit.

With Boucher’s health now suffering as a result of stress, she scheduled another meeting with the Wal-Mart management team. The management team conducted an investigation but concluded that her complaints were unsubstantiated. They told Boucher that she would be disciplined for making unsubstantiated complaints.

After further abusive encounters with her supervisor, Boucher could no longer tolerate the working environment and she left work. She sent Wal-Mart an email explaining that she would not return until her concerns were resolved, but they never were.

At trial it was found that in fact Boucher had not quit, but rather that she had been constructively dismissed. She received damages equivalent to 20 weeks salary as set out in her employment contract. In addition, she was awarded damages for intentional infliction of mental suffering, aggravated damages, and punitive damages. The Court of Appeal upheld damages in each of these categories but reduced the punitive damages against the supervisor and Wal-Mart. These categories of damages are not awarded in every wrongful dismissal case and only when certain circumstances exist. See below for the Court’s explanation of these damages.

The tort of intentional infliction of mental suffering has three elements that the plaintiff must prove:

  • The defendant’s conduct was flagrant and outrageous;
  • The defendant’s conduct was calculated to harm the plaintiff; and
  • The defendant’s conduct caused the plaintiff to suffer a visible and provable illness.

In this case, it was clear from the actions of the supervisor and evidence of co-workers that the supervisor’s conduct was not only flagrant and outrageous but also was intended to cause Boucher such emotional distress that she would be forced to quit. Boucher suffered physically from this emotional distress as it was causing her symptoms such as she could not eat or sleep, she had abdominal pain, and she was vomiting and losing weight.

Aggravated damages are awarded against an employer when they act unfairly or in bad faith in the manner of an employee’s dismissal. In this case, it was clear that Wal-Mart had acted in bad faith and that an award of aggravated damages would be appropriate. Furthermore, the amount of aggravated damages awarded was $200,000, an unprecedented amount in Canadian employment law.

Additionally, the conduct of Wal-Mart and the supervisor was so offensive that it met the exceptionally high standard for malicious and oppressive conduct and punitive damages were awarded against both Wal-Mart and the supervisor. However, the Court of Appeal reduced the damages against each of them because the large amount of aggravated damages and damages for intentional infliction of mental suffering are already likely to punish the defendants and have a deterrent effect.

Overall, this was not a standard wrongful dismissal case. The outrageous treatment endured by Boucher resulted in a relatively long list of damages. The Court of Appeal awarded Boucher the following damages:

(a)                $100,000 against the supervisor for intentional infliction of mental suffering;

(b)               $200,000 in aggravated damages against Wal-Mart;

(c)                $10,000 in punitive damages against the supervisor; and

(d)               $100,000 in punitive damages against Wal-Mart.


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