Canadian courts are becoming increasingly protective of employees claiming to have been harmed by their employer's conduct. Nowhere is that more evident than when it comes to assessing damages against employers for harassment.
We are truly living in an age of judicial activism when it comes to the protection of the rights of employees. Starting a decade ago with the Supreme Court of Canada's Wallace v. United Grain Growers decision, in which the concept of damages for bad faith treatment was introduced, the courts have made great strides in compensating employees for the poor conduct of their employer.
A recent British Columbia Supreme Court decision exemplifies this trend. The case, Sulz v. Canada (Attorney General) featured a claim by a former R.C.M.P. officer that her immediate supervisors harassed her to the point that she became clinically depressed. Her depression reached the stage at which she had no choice but to accept a medical discharge.
The former officer, Sulz, brought claims arising from the conduct of her staff sergeant and two other supervisors in her detachment. She claimed she was mistreated over a two year period culminating with her taking a sick leave in 1996 and eventually accepting a medical discharge in 2000.
By all accounts, Sulz had an exemplary record early in her career as a police officer. That changed in 1994 with the arrival of a new staff sergeant in the role of Merritt detachment commander. Soon after, Sulz became pregnant and it appears that is when her problems with the staff sergeant began.
She complained that her superior officers used harsh language, went out of their way in an attempt to penalize her for supposed breaches of policy, and made derogatory remarks about her in the presence of other detachment staff. She also alleged that her superiors claimed she had become pregnant to exploit the system and that they made threats she would suffer for her conduct. She claimed she was ostracized from the other officers in the detachment and that her superiors alleged she had a drug dependency problem. The instances of all these types of alleged misconduct were numerous.
All of this left Sulz with an extreme form of depression. She felt distressed, had lost her appetite, couldn't sleep properly, and was constantly on the verge of emotional breakdown. She became terrified of going to work, had trouble remembering things, and was generally in poor physical and mental health. She was diagnosed as having a major depressive disorder, went on sick leave in 1996, and never returned to work.
Sulz sued for breach of contract and for negligent infliction of mental suffering. The Supreme Court of B.C. upheld the claim, finding the conduct of the staff sergeant (and others) to be objectionable. The Court concluded the staff sergeant was prone to angry outbursts, particularly in relation to Sulz. His behaviour was intemperate and at times unreasonable.
The staff sergeant did little to curb his temper, he was causing serious emotional problems for her, and his frequent outbursts and cutting comments were major causes of the troubled work environment she experienced. His conduct violated the R.C.M.P. harassment policy and his breach of the duty of care he owed her caused her serious psychological harm.
Sulz's physician diagnosed her with a major depressive disorder and concluded she would continue to suffer depression to some extent for the remainder of her life. The evidence was that she was left competitively unemployable (in that she was only capable of working at uncomplicated tasks on a part-time basis, in a stress free environment).
The Court awarded Sulz wage loss damages of $825,000 and general damages (as a result of the emotional impact on her of the treatment she endured) of $125,000. The bulk of the award ($600,000) was for future wage loss and in this regard the Court was heavily reliant upon the medical assessment of her inability to return to gainful employment.
The significance of this decision is twofold. First, the Court took a very critical view of the conduct of Sulz's superiors (even when the "paramilitary" nature of the police environment was taken into account). It is clear that the B.C. Supreme Court will not tolerate this form of employee relations and employers are well-advised to take note of the amount of the award when assessing their own management style.
Second, and most important, is the degree to which the Court readily accepted the medical evidence about her future employability. Notably, Sulz was a relatively young woman and the harassment occurred over only a two year period (during which she was absent for 6 months on maternity leave). The harassment described by the Court, while certainly objectionable, certainly could not be said to fall at the most extreme end of the scale.
Nonetheless, the Court's award effectively indemnified Sulz, at the expense of her former employer, for the loss of a future career. That is the sort of result of which employers must be extremely wary. If for no other reason that that, employers should double their efforts to ensure harassment of this type does not occur in their workplace.