



COURT OF APPEAL
    FOR ONTARIO

CITATION: Strudwick v. Applied Consumer & Clinical
    Evaluations Inc., 2016 ONCA 520

DATE: 20160630

DOCKET: C60903

Doherty, Epstein and Miller JJ.A.

BETWEEN

Vicky Karen Strudwick

Plaintiff (Appellant/

Respondent by way of cross-appeal))

and

Applied Consumer & Clinical Evaluations Inc.

Defendant (Respondent/

Appellant by way of cross-appeal)

Christopher Du Vernet and Carlin McGoogan, for the
    appellant

Ernest D. Coetzee, for the respondent

Heard: February 3, 2016

On appeal from the judgment of Justice Grant R. Dow of
    the Superior Court of Justice, dated August 7, 2015.

Epstein
    J.A.:

[1]

This
    wrongful dismissal action arose out of a long-term employment relationship
    between the appellant, Vicky Strudwick, and the respondent, Applied Consumer
    and Clinical Evaluations Inc., a business that recruits people to participate
    in focus groups. Ms. Strudwick worked for Applied Consumer for over 15 years,
    initially in data entry and later instructing recruiting staff. At the time of
    her dismissal in May 2011, Ms. Strudwick was earning $12.85 per hour.

[2]

In
    October 2010, Ms. Strudwick suddenly became completely deaf. While the cause is
    uncertain, her doctors believe it was a virus. At that time, Raymond Berta, the
    owner and manager of Applied Consumer, was away from his business dealing with
    a medical problem. The general manager of Applied Consumer, Andrew Hoffman, had
    taken over the operations of the company in Mr. Bertas absence. Almost
    immediately after Ms. Strudwick became deaf, Mr. Hoffman, together with
    Ms. Strudwicks immediate supervisor, Liz Camilleri, commenced a campaign of
    abuse against Ms. Strudwick designed to force her resignation. This abuse will
    be described in more detail later in these reasons. In summary, in addition to publically
    belittling, harassing and isolating Ms. Strudwick in ways relating to her
    disability, Applied Consumer not only denied Ms. Strudwick any
    accommodation of her disability but also took specific steps to increase the
    difficulties she faced as a result of her not being able to hear. The
    culmination of this abuse came on May 27, 2011 when Mr. Hoffman fired Ms. Strudwick
    for a stunt [she] had [allegedly] pulled at a company event.

[3]

Ms.
    Strudwick sued Applied Consumer for damages for wrongful dismissal and related
    claims arising out of the abuse. Applied Consumer did not defend the action and
    was noted in default. After an unsuccessful attempt to have the noting in
    default set aside, a hearing took place to assess damages. The motion judge
    considered Ms. Strudwicks uncontradicted evidence and submissions of counsel
    for both parties
[1]
and granted judgment in favour of Ms. Strudwick in the aggregate amount of
    $113,782.79, including pre-judgment interest, plus $40,000 in costs.

[4]

Ms.
    Strudwick appeals the damages assessment on the basis that, given Applied
    Consumers extraordinarily egregious conduct, the motion judge erred by
    assessing damages that were simply too low. She also seeks leave to appeal the
    motion judges costs award. Applied Consumer does not challenge the motion
    judges damage awards. However, in its cross-appeal, it seeks leave to appeal
    costs. If leave is granted, it asks this court to reduce the costs award to
    $20,000.

[5]

I
    would allow the appeal and dismiss the cross-appeal. For the reasons that
    follow, I have concluded that, in certain respects, the trial judge erred in
    his award of damages. I would increase the total damages to $246,049.92. In
    terms of the cross-appeal, I am of the view that there is no reason to disturb
    the trial judges costs order. I would therefore not grant leave to appeal
    costs to either party.

Background in Brief

(1)

The Abuse

[6]

There were two main aspects of abuse  Applied
    Consumers general treatment of Ms. Strudwick and its conduct in relation to
    accommodating her disability.

[7]

With respect to the cruel treatment, the
    evidence demonstrated, and the motion judge found, that Mr. Hoffman and Ms.
    Camilleri tormented Ms. Strudwick for the specific purpose of making the work
    environment intolerable. For example, Ms. Camilleri would purposely give Ms.
    Strudwick instructions in a manner that prevented her from lip reading. Then, Ms.
    Camilleri would call Ms. Strudwick stupid for not understanding the
    instructions. Ms. Camilleri would chastise Ms. Strudwick for not answering the
    telephone. Mr. Hoffman demanded that Ms. Strudwick produce a doctors opinion
    as to the precise cause of her hearing loss. Since, as previously mentioned, the
    doctors were unable to identify the cause of Ms. Strudwicks hearing loss and
    so instead she provided Mr. Hoffman with hearing test results. In response,
    Ms. Camilleri accused Ms. Strudwick of being too cheap to produce a
    doctors note. Ms. Camilleri suggested to Ms. Strudwick that she just quit
    and go on disability.

[8]

The motion judge found that this conduct was
    intended to force Ms. Strudwick to resign.

[9]

In terms of accommodation, the trial judge provided
    a description of Mr. Hoffmans abusive conduct toward Ms. Strudwick concerning
    the refusal of even the most basic accommodation of her disability. Details of
    this refusal to accommodate include denying Ms. Strudwick:

·

the assistance of the Canadian Hearing Society
    in coming to the office and performing an accommodation assessment;

·

access to important information in print;

·

permission to bring an assistance dog to the
    workplace (it is of note that Mr. Berta had regularly brought his dog into the
    office);

·

permission to use a special voice carry over
    telephone at her own expense;

·

the benefit of a visual fire alarm that she also
    offered to pay for or her request to assign a person to notify her if the fire
    alarm was activated;

·

her request to turn her desk around so that she
    could see people as they approached; and

·

her request to use a vibrating or light-activated
    pager given to her by the Canadian Hearing Society.

[10]

Mr. Hoffman took the position that these accommodations were
    unnecessary.

[11]

Applied Consumers offensive response to its obligation to
    accommodate Ms. Strudwicks disability went further. As previously mentioned, in
    addition to denying accommodation, Mr. Hoffman and Ms. Camilleri took specific steps
    clearly designed to exacerbate the challenges Ms. Strudwick faced as a result
    of her hearing loss. These steps included advising co-workers not to talk to
    her and instructing other office workers to telephone Ms. Strudwick so she
    would miss the call thereby providing Ms. Camilleri with yet another
    opportunity to ridicule her.

[12]

In summary, in the lead-up to Ms. Strudwicks termination, she was
    belittled, isolated, humiliated and made to suffer the effects of her
    disability to the greatest extent possible. This conduct was deliberate, malicious
    and designed to force Ms. Strudwick to quit a job she had held for almost 16
    years.

(2)

The Termination

[13]

The employees of Applied Consumer had formed a Toastmasters Club. This
    voluntary group met periodically at the workplace. The company encouraged participation
    in the club. Ms. Strudwick was one of ten employees of Applied Consumer who
    attended the Toastmasters meeting on May 26, 2011. She helped select the
    topics to be addressed but did not give a presentation.

[14]

The next day Mr. Hoffman, in front of 13 other employees, confronted
    Ms. Strudwick about the Toastmasters meeting. He berated her, calling her
    a goddamned fool. Then, in the presence of Ms. Camilleri and another
    employee, Mr. Hoffman terminated Ms. Strudwicks employment for insubordination
    and wilful misconduct, referring to a stunt at the Toastmasters event.

[15]

Mr. Hoffman immediately provided Ms. Strudwick with a document
    confirming her termination, a cheque for three months pay and a form of
    release. When she did not sign the release, Mr. Hoffman took the cheque back. At
    that point, Ms. Strudwick was escorted to her desk to collect her belongings
    and marched out of the building in front of her co-workers.

(3)

The Consequences

[16]

Ms. Strudwick did not receive her outstanding pay until Labour
    Community Services of Peel Region intervened. Applied Consumer tendered a
    document to Employment Services of Canada indicating Ms. Strudwick had been
    fired for insubordination and wilful misconduct. This delayed Ms. Strudwicks
    ability to secure unemployment insurance payments.

[17]

Ms. Strudwicks efforts to mitigate her damages were largely
    unsuccessful. In September 2014, she obtained part-time employment working
    sporadically for $60 per day.

[18]

A psychiatrist diagnosed Ms. Strudwick as having an adjustment
    disorder with mixed anxiety and depressed mood as a result of the manner in
    which Applied Consumer treated her. To address these afflictions, Ms. Strudwick
    has been forced to pay for extensive cognitive behavioural therapy.

(4)

The Legal Proceedings

[19]

Ms. Strudwick commenced this action by statement of claim issued in
    January 2012. In her pleading she claimed specific amounts under various
    categories: damages for wrongful dismissal; restitution under s. 46.1 of the Ontario
Human Rights Code
, R.S.O. 1990, c. H.19; general
    damages for breach of good faith; punitive damages; and exemplary damages. The
    total amount claimed was $240,000 plus an unquantified request for damages
    associated with her loss of benefits during the notice period.

[20]

Applied Consumer did not deliver a statement of defence and was
    noted in default. The company moved to set aside the noting in default. In his
    March 10, 2014 reasons for dismissing the motion, Spence J. of the Superior
    Court of Justice described Applied Consumers excuse for not defending as
    clutching at trivialities and concluded that Applied Consumers conduct
    revealed a litigant who [had] no real interest in going to trial but simply [wished]
    to delay for as long as possible. This court dismissed Applied Consumers
    appeal from Spence J.s decision, saying that the motion judges
    characterization of the companys conduct spoke volumes about its overall
    attitude toward the defence. Applied Consumer sought leave to appeal this
    courts decision to the Supreme Court. Leave was denied.

[21]

Prior to this appeal, as a result of the motion judges judgment of
    almost $114,000 and the $40,000 cost award, in addition to the cost orders
    associated with Applied Consumers failed efforts to cure its default in
    defending the action, the company owed Ms. Strudwick close to $180,000, not
    including the costs ultimately ordered by the Supreme Court.

[22]

After the appeal and cross-appeal were launched, Ms. Strudwick, then
    on social assistance, moved to lift the automatic stay of the enforcement of
    the judgment. Applied Consumer, asserting financial difficulties, argued that
    it be allowed to pay the amount it owed, in instalments.

[23]

In his endorsement lifting the stay, Miller J.A. made the following
    observations. There was no evidence in support of Applied Consumers assertion
    of financial hardship. Applied Consumer had not made a single voluntary payment
    to Ms. Strudwick and she had therefore been forced to execute on the various cost
    orders in her favour. And, the motion to lift the stay was necessary only
    because of the unreasonable position taken by Applied Consumer.

THE APPEAL ON DAMAGES

ISSUES

[24]

The primary issue in the appeal is whether the trial judge erred in
    his assessment of damages within the various categories set out above. However,
    a preliminary issue must be addressed and that is the fact that, on appeal, Ms. Strudwick
    is seeking damages significantly in excess of the amount claimed in her
    statement of claim. I will deal with this preliminary issue, first.

ANALYSIS

(1)

Does the Statement of
    Claim limit the Award of Damages?

[25]

On appeal, Ms. Strudwick seeks damages totalling $1,019,384.80. Applied
    Consumer contends that the aggregate amount is limited by the amount claimed in
    the statement of claim of $240,000 plus an amount to compensate Ms. Strudwick
    for the loss of collateral benefits. In response to a question from the panel,
    counsel for Applied Consumer acknowledged that his client would suffer no
    prejudice if any award this court may order under a particular head of damage
    exceeded the amount claimed under that head, provided the overall damages
    awarded did not exceed the total amount claimed in the statement of claim. Counsel
    left any such adjustment in the amount ordered under a particular head of
    damage in the courts hands.

The Governing Principles

[26]

In
Burkhardt v.
    Beder
,
[1963]
    S.C.R. 86
, at p. 91, the Supreme Court referred to r. 147 of the
    Ontario Rules of Practice, which it characterized as requiring that when
    damages are claimed the amount shall be named in the statement of claim. The
    court then stated that the authorities are clear that judgment cannot be given
    for an amount greater than that claimed unless an amendment is allowed: p. 91.

[27]

Rule 147 of
The
    Rules of Practice and Procedure of the Supreme Court of Ontario in Civil
    Matters
, R.R.O., 1960, Reg. 396, stated Every statement of claim and
    counter-claim shall state specifically the relief claimed, either simply or in
    the alternative, and may also ask for general relief, and, when damages are
    claimed, the amount shall be named.
[2]
This is similar to the current r. 25.06(9) of the
Rules of Civil Procedure
,
    R.R.O. 1990, Reg. 194, which states:

(9) Where a pleading contains a claim for relief, the
    nature of the relief claimed shall be specified and, where damages are claimed,

(a) the amount claimed for each claimant in
    respect of each claim shall be stated; and

(b) the amounts and particulars of special damages
    need only be pleaded to the extent that they are known at the date of the
    pleading, but notice of any further amounts and particulars shall be delivered
    forthwith after they become known and, in any event, not less than ten days
    before trial.

[28]

In my view, the
    similarity of the two rules supports the application of the rule in
Burkhardt
in the context of the current rule and therefore in this case.

[29]

This is also in
    keeping with the Supreme Courts analysis in
Whiten v. Pilot Insurance
,
2002 SCC 18
,
    [2002] 1 S.C.R. 595. There, in considering whether or not punitive damages
    needed to be specifically pleaded, Binnie J. stated, at para. 87, One of
    the purposes of a statement of claim is to alert the defendant to the case it
    has to meet, and if at the end of the day the defendant is surprised by an
    award against it that is a multiple of what it thought was the amount in issue,
    there is an obvious unfairness.

[30]

This principle is
    reinforced by the number of cases in which parties awarded damages in amounts
    greater than requested in their statement of claim have sought to amend the
    pleadings following the award. For example, in
B. (M.) v. 2014052 Ontario
    Ltd.
,
2012 ONCA
    135
, 109 O.R. (3d) 351,

at paras. 71-74, the jury awarded a
    general damages award of $300,000 to the respondent, who had only claimed
    $250,000. On appeal, the appellant argued for a reduction of the award to
    $250,000, in line with the statement of claim. At the respondents request, the
    court granted leave to amend the pleadings under r. 26.01 to conform with the
    jurys general damages award.


The Principles Applied

[31]

I
    note Ms. Strudwick at no point prior to the hearing of this appeal sought to
    amend her claim to increase the amount of damages requested. This issue was
    addressed in oral argument by both counsel. Counsel for Applied Consumer advised
    the court that during a previous hearing below,
counsel for
    Ms. Strudwick informed the court that he did not intend to seek to amend the
    statement of claim to increase the damages as such a move would re-open
    pleadings, giving Applied Consumer to defend the action. Counsel for Ms.
    Strudwick then indicated to this court that he was moving to amend the
    pleadings. However, no motion record was ever filed with this court, nor was
    any notice given to Applied Consumer of any such motion. The matter went no
    further.

[32]

In my view, in these circumstances, this court does not have
    jurisdiction to award damages that exceed the amount claimed in the statement
    of claim; namely, $240,000 plus the unquantified amount to compensate Ms.
    Strudwick for the benefits she lost during the period of reasonable notice.

(2)

Did the Motion Judge
    Err in his Award of Damages?

(a)

Standard of Review

[33]

In
Woelk v. Halvorson
, [1980] 2 S.C.R. 430, at p. 435, the
    Supreme Court held that an appellate court cannot interfere with a damages
    award simply because it would have come to a different conclusion. Rather, as
    explained in
Naylor Group Inc. v. Ellis-Don Construction Ltd.
, 2001 SCC
    58, [2001] 2 S.C.R. 943, at para. 80, interference is only justified where the
    trial judge: (1) made an error of principle or law; (2) misapprehended the
    evidence; (3) erred in finding there to be evidence on which to base a
    conclusion; (4) failed to consider relevant factors, or considered irrelevant
    factors; or (5) made a palpably incorrect or wholly erroneous assessment of
    the damages.

[34]

Ms. Strudwick challenges the damages awarded under each category for
    different reasons. In the following analysis I will set out her position in
    respect of each award. Applied Consumers position, however, is the same
    throughout and so I will set it out here. In short, Applied Consumer submits
    that deference is owed to the assessment of the trial judge, whose reasons
    display no error.

(b)

Damages for Wrongful Dismissal

[35]

The
    motion judge found, at para. 21, that the circumstances placed Ms. Strudwick
    at the highest level for the number of months of notice. He concluded that
    the notice period should be 20 months. Based on the manner of dismissal, the
    trial judge added four months for what has come to be known as the 
Wallace
factor (see
Wallace v. United Grain Growers Ltd.
,
[1997] 3 S.C.R.
    701
)
.

[36]

The
    trial judge calculated damages for wrongful dismissal based on 24 months
    salary, using a two percent cost of living increase and a tax gross up, to be
    $49,907.05.

[37]

Ms. Strudwick submits that the trial judge erred by imposing an
    upper limit to the length of the notice period. She argues that, given her age
    and disability, her dismissal sentenced her to chronic unemployment. Ms.
    Strudwick submits that applying the
Bardal
[3]
factors to her
    wrongful dismissal and taking into account the manner of dismissal and the
    scorched earth litigation strategy, she should receive pay in lieu of notice
    to age 65  or for 125 months. With inflation and gross up, this would amount
    to damages representing pay in lieu of notice of $358,450.80.

The Governing Principles

[38]

In
Keays v. Honda Canada Inc.
, [2008] 2 S.C.R. 362, at para. 28, the
    Supreme Court reinforced what have come to be known as the
Bardal
factors:

In determining what
    constitutes reasonable notice of termination, the courts have generally applied
    the principles articulated by McRuer C.J.H.C. in
Bardal
, at p. 145:

There can be no catalogue laid down as to what is reasonable
    notice in particular classes of cases. The reasonableness of the notice must be
    decided with reference to each particular case, having regard to the character
    of the employment, the length of service of the servant, the age of the servant
    and the availability of similar employment, having regard to the experience,
    training and qualification of the servant.

[39]

In
Keays
, the
    court clarified that in determining the appropriate notice period the courts concern
    is the particular circumstances of the individual  no one
Bardal
factor should be given disproportionate weight:
Keays
, at paras. 30,
    32.

[40]

This fact-specific and
    contextual approach to the period of reasonable notice, limited by a range of
    reasonableness, is consistent with the manner in which this court has reviewed
    wrongful dismissal awards. As Laskin J.A. observed in
Minott v. OShanter
    Development Co.
(1999),
42 O.R.
    (3d) 321
(C.A.), at pp. 343-44:

Determining the period of reasonable notice is an art not a
    science. In each case trial judges must weigh and balance a catalogue of relevant
    factors. No two cases are identical; and, ordinarily, there is no one
    "right" figure for reasonable notice. Instead, most cases yield a
    range of reasonableness. Therefore, a trial judge's determination of the period
    of reasonable notice is entitled to deference from an appellate court. An
    appeal court is not justified in interfering unless the figure arrived at by
    the trial judge is outside an acceptable range or unless, in arriving at the
    figure, the trial judge erred in principle or made an unreasonable finding of
    fact. If the trial judge erred in principle, an appellate court may substitute
    its own figure. But it should do so sparingly if the trial judge's award is
    within an acceptable range despite the error in principle.

[41]

This court has
    rejected the argument that there should be an upper limit on notice periods in
    wrongful dismissal cases. In
Di Tomaso v. Crown Metal Packaging Canada LP
,
2011 ONCA
    469
, 337 D.L.R. (4th) 679,

at para. 23, MacPherson J.A.
    declined to set a cap for the quantum of reasonable notice for clerical and
    unskilled employees. This court has noted, however, that courts should strive
    to ensure that notice periods are consistent with the case law:
Kotecha v.
    Affinia Canada ULC
,
2014 ONCA
    411
, at para. 8.

[42]

Although it is clear that reasonable notice of employment
    termination must be determined on a case-specific basis and there is no
    absolute upper limit on what constitutes reasonable notice, generally only
    exceptional circumstances will support a base notice period in excess of 24
    months:
Lowndes v. Summit Ford Sales Ltd.
(2006)
,
206 O.A.C. 55 (C.A.), at
    para. 11;
Keenan v. Canac Kitchens Ltd.
, 2016 ONCA 79, at paras. 30-32.

The Principles Applied

[43]

In my view, the motion judge did not err in his application of
    the governing legal principles to the facts of this case
. He
    correctly noted that the appropriate range had no limit or cap. He was aware
    that Ms. Strudwick had worked for Applied Consumer for 15 years and 8 months,
    and that she was 56 years old at the time of termination. He observed that the
    distinction between greater notice for highly skilled positions and less notice
    for clerical or unskilled work was largely irrelevant. And he knew that the
    appellant had unsuccessfully sought full-time employment for four years. In
    determining a base notice period of 20 months, I see no error in principle. Nor
    do I view the amount ultimately awarded as being outside an acceptable range.

[44]

In addition, I do not agree with Ms. Strudwicks argument that, in the
    circumstances, Ms. Strudwick is entitled to pay and related benefits until she
    turns 65 and retires.

[45]

The purpose of an
    award of damages for wrongful dismissal is to give the employee what she needs
    to support herself until she finds a new job. That risk has to be understood as
    meaning what she reasonably needs in the circumstances. Absent a fixed term
    contract, the risk of an employers having to pay an amount calculated with
    respect to that purpose is limited by the fact that, both generally and in this
    case, an employer does not guarantee employment to retirement.

[46]

A contracting party
    assumes certain risks in making a contract. These risks are generally fixed
    when the contract is made. In the case of an employment contract, the risk the
    employer assumes is that, if an employee is dismissed without notice or cause,
    the employer must pay what it would have had to pay the employee during the
    period of notice. In an employment situation, the period may change as time
    goes by so that the actual size of the payment the employer must make cannot be
    known until the event occurs. Even then, the initial assumption of risk does
    not change: only the calculation of the consequences of the risk changes over
    time.

[47]

This argument is the
    understanding behind
Hadley v. Baxendale
(1854), 156 E.R. 145. The
    promisor is liable for the ordinary losses the promisor could have foreseen. Beyond
    that point, the promisor is not liable. This approach to damages governs
    damages for wrongful dismissal.
[4]


[48]

Applied Consumer
    accepted the risk that, if it dismissed Ms. Strudwick without notice or cause,
    it would have to pay her an amount fixed in accordance with the
Bardal
factors relevant at the time of dismissal. It did not accept, and cannot be
    held to have accepted, the risk that, in dismissing a 56-year-old woman, it
    would have to pay her until she retired. Put another way, it cannot be the law
    that Applied Consumer could not have dismissed Ms. Strudwick with notice but
    had to employ her until she reached the age of 65.

[49]

I should indicate that
    I am of the view that the trial judge did err in awarding 
Wallace
 damages
    by arbitrarily extending the notice period by four months, as opposed to
    determining an award that reflects the actual damages as required by
Keays
.
    However, Applied Consumer has not cross-appealed damages, so there is no
    challenge to this additional four months of reasonable notice. I will return to
    the impact of this amount later in these reasons where I deal with aggravated
    damages.

(c)

Cost of Replacing B
enefits that would have been
provided
during the
Notice P
eriod

[50]

Ms. Strudwick claimed
    additional damages for wrongful dismissal based on the loss of collateral
    benefits associated with her employment. The motion judge noted that the
    evidence she tendered in support of this claim indicated an annual cost of
    replacement of $3,024.96. According to the motion judge, based on a 24-month
    notice period, Ms. Strudwick was entitled to an additional $6,049.92.

[51]

Ms. Strudwick does not
    challenge this part of the motion judges damage award  either the number of
    months or the manner of calculation. Applied Consumer has not cross-appealed
    the quantum. I therefore see no reason to interfere with the amount awarded under
    this heading.

(d)

Code
Violations

[52]

The motion judge awarded Ms. Strudwick damages under s. 46.1 of the
Code
. Based on various cases cited by Ms. Strudwicks counsel, the
    motion judge identified a range of awards between $2,000 and $30,000. Referring
    to Applied Consumers abject failure to consider or accommodate [Ms.
    Strudwick] despite repeated, reasonable and varied requests and their being no
    evidence to contradict Applied Consumers unconscionable conduct, the motion
    judge assessed damages under this category at $20,000.

[53]

Ms.
    Strudwick argues that the motion judges award of $20,000 was too low
    considering her particular vulnerability and the seriousness of the offensive
    treatment, including the bad faith nature of Applied Consumers treatment of
    her.

The Governing Principles

[54]

Section 46.1(1) of the
Code
states:

46.1 (1) If, in a civil proceeding in a court, the
    court finds that a party to the proceeding has infringed a right under Part I
    of another party to the proceeding, the court may make either of the following
    orders, or both:

1. An order directing the party who infringed the
    right to pay monetary compensation to the party whose right was infringed for
    loss arising out of the infringement, including compensation for injury to
    dignity, feelings and self-respect.

2. An order directing the party who infringed the
    right to make restitution to the party whose right was infringed, other than
    through monetary compensation, for loss arising out of the infringement,
    including restitution for injury to dignity, feelings and self-respect.

[55]

In
Keays
, at
    para. 63, Bastarache J. noted that the restriction of monetary compensation to
    loss arising out of the infringement confirmed the
Code
s remedial as
    opposed to punitive thrust. Thus damages in this context are not designed to
    punish the employer but rather remedy the effects of discrimination.

[56]

Section 46.1 mirrors
    the remedial powers given to the Ontario Human Rights Tribunal (the Tribunal)
    under s. 45.2, which pertains where a person has applied to the Tribunal for an
    order. That section states:

45.2 (1) On an application under section 34, the
    Tribunal may make one or more of the following orders if the Tribunal
    determines that a party to the application

has infringed a right under
    Part I of another party to the application:

1.
An order directing the
    party who infringed the right to pay monetary compensation to the party whose
    right was infringed for loss arising out of the infringement, including
    compensation for injury to dignity, feelings and self-respect
.

2.
An order directing the
    party who infringed the right to make restitution to the party whose right was
    infringed, other than through monetary compensation, for loss arising out of
    the infringement, including restitution for injury to dignity, feelings and
    self-respect
.

3. An order directing any party to the application
    to do anything that, in the opinion of the Tribunal, the party ought to do to
    promote compliance with this Act. [Emphasis added.]

[57]

In
Lane v. ADGA
    Group Consultants Inc.
(2008),
91 O.R.
    (3d) 649
, the Divisional Court outlined the relevant principles
    applicable to assessing damages under the
Code
. Although
Lane
was
    decided under what was then s. 41(1) of the
Code
, the section, while
    not identical in wording, conveyed similar powers:

41. (1) Where the Tribunal, after a hearing, finds
    that a right of the complainant under Part I has been infringed and that the
    infringement is a contravention of section 9 by a party to the proceeding, the
    Tribunal may, by order,

(a) direct the party to do anything that, in the
    opinion of the Tribunal, the party ought to do to achieve compliance with this
    Act, both in respect of the complaint and in respect of future practices; and

(b)
direct the party to make restitution, including
    monetary compensation, for loss arising out of the infringement
, and, where
    the infringement has been engaged in wilfully or recklessly, monetary
    compensation may include an award, not exceeding $10,000, for mental anguish.

[58]

Writing for the court,
    Ferrier J. characterized the damages awarded under s. 41(1)(b) as general
    damages to compensate for the intrinsic value of the infringement of rights
    under the [
Code
]
; it
    is compensation for the loss of the right to be free from discrimination and
    the experience of victimization:
Lane
, at para. 149.

[59]

In outlining the
    considerations with respect to quantum, Ferrier J. stated, at paras. 153-54:

This court has recognized that there is no ceiling on awards of
    general damages under the [
Code
]. Furthermore, Human Rights Tribunals
    must ensure that the quantum of general damages is not set too low, since doing
    so would trivialize the social importance of the [
Code
] by effectively
    creating a licence fee to discriminate.

Among the factors that Tribunals should consider when awarding
    general damages are humiliation; hurt feelings; the loss of self-respect,
    dignity and confidence by the complainant; the experience of victimization; the
    vulnerability of the complainant; and the seriousness of the offensive
    treatment. [Citations omitted.]

[60]

Although
Lane

does not deal specifically with s. 46.1, in my view the similarity between
    the remedial authority granted under the two provisions supports its
    application in the s. 46.1 context. And, in several decisions exercising
    jurisdiction under s. 46.1, the Superior Court has looked to the decision in
Lane
for guidance in assessing damages for human rights claims raised in conjunction
    with a wrongful dismissal claim:
Wilson v. Solis Mexican Foods Inc.
,
2013 ONSC
    5799
;
Silvera v. Olympia Jewellery Corp.
, 2015
    ONSC 3760
.

[61]

The Tribunal expanded
    on the factors listed in
Lane
in
Arunachalam v. Best Buy Canada
,
2010 HRTO
    1880
, at paras 51-54:

Cases with equivalent facts should lead to an equivalent range
    of compensation, recognizing, of course, that each set of circumstances is
    unique. Uniform principles must be applied to determine which types of cases
    are more or less serious. Of course there will always be an element of
    subjective evaluation in translating circumstances to dollars, but the Tribunal
    has a responsibility to the community and parties appearing before it to ensure
    that the range of damages based on given facts is predictable and principled.

The Tribunals jurisprudence over the two years since the new
    damages provision took effect has primarily applied two criteria in making the
    global evaluation of the appropriate damages for injury to dignity, feelings
    and self-respect: the objective seriousness of the conduct and the effect on
    the particular applicant who experienced discrimination: see, in particular,
Seguin
    v. Great Blue Heron Charity Casino
,
2009 HRTO
    940
at para. 16 (CanLII).

The first criterion recognizes that injury to dignity,
    feelings, and self[-]respect is generally more serious depending, objectively,
    upon what occurred.
For example, dismissal from employment for
    discriminatory reasons usually affects dignity more than a comment made on one
    occasion. Losing long-term employment because of discrimination is typically
    more harmful than losing a new job. The more prolonged, hurtful, and serious
    harassing comments are, the greater the injury to dignity, feelings and
    self-respect.

The second criterion recognizes the applicants particular
    experience in response to the discrimination.
Damages will be generally at
    the high end of the relevant range when the applicant has experienced
    particular emotional difficulties as a result of the event, and when his or her
    particular circumstances make the effects particularly serious.
Some of the
    relevant considerations in relation to this factor are discussed in
Sanford
    v. Koop
,
2005 HRTO
    53
(CanLII) at paras. 34-38. [Emphasis added.]

[62]

The considerations
    discussed in
Sanford
, at para. 38, include:

·

the immediate impact of the discrimination and/or harassment on
    the complainants emotional and/or physical health;

·

the ongoing impact of the discrimination and/or harassment on the
    complainants emotional and/or physical health;

·

the complainants vulnerability;

·

objections to the offensive conduct;

·

the respondents knowledge that the conduct was not only
    unwelcome but viewed as harassment or discrimination;

·

the degree of anxiety the conduct caused; and

·

the frequency and intensity of the conduct.

The Principles Applied

[63]

With respect, I view the
    motion judges analysis under this head of damages as being flawed in two
    respects.

[64]

First, while the
    motion judge noted that Applied Consumers conduct was unconscionable,
    suggesting he found it to be objectively serious, he failed to consider the impact
    of the discrimination on Ms. Strudwick. As a result, he did not take into
    account:

·

Ms. Strudwicks immediate feelings of isolation, anxiety,
    stigmatization and humiliation, which were accompanied by physical symptoms
    including loss of appetite, exhaustion and headaches;

·

Ms. Strudwicks subsequent diagnosis of depression, anxiety and
    an adjustment disorder;

·

Ms. Strudwicks vulnerability, including that she had only
    recently become deaf and her reliance on employment with Applied Consumer to
    support herself; and

·

that Ms. Strudwick did not object to offensive conduct that went
    on for many months, for fear of losing her job.

[65]

The effect of Applied
    Consumers victimization of Ms. Strudwick was both profound and prolonged. The
    evidence demonstrated that she suffered significant emotional and physical difficulties
    as a result of Applied Consumers abusive treatment of her. Her circumstances,
    as a widow who had acquired a serious disability late in life and who had no
    other source of income, made the effects of the discrimination particularly severe.

[66]

Second, while he
    considered Applied Consumers abject failure to accommodate Ms. Strudwick, the
    motion judge erred, in my view, by not taking into account an important
    exacerbating factor  that the companys victimization of Ms. Strudwick went
    beyond failing to accommodate her hearing loss; much of the abuse was actually
    designed to increase the difficulties she was experiencing at work.

[67]

As I will explain, Applied
    Consumer is vicariously liable for this harassment.

[68]

Section 46.3(1) of the
Code
provides for the vicarious liability of corporations for the acts
    of their officers, employees or agents. While a corporation cannot be held
    vicariously liable for the acts of its employees, agents or officers when it
    comes to harassment, the failure of management to deal with the harassment,
    thereby creating a poisoned work environment, is a violation under s. 5(1) of
    the Code for which the corporation can be held vicariously liable:
Farris
    v. Staubach Ontario Inc.
, 2012 ONSC 3876, 294 O.A.C. 187 (Div. Ct.), at
    para. 33. Furthermore, if the individual responsible for the harassment is a
    directing mind of the corporation, then the corporation can also be held liable
    for the individual acts of harassment:
Farris
, at para. 33.

[69]

Mr. Hoffman,
    responsible for managing the company in Mr. Bertas absence, appears to have
    been the primary participant in the harassment of Ms. Strudwick. However, he
    was not the only employee involved in the abuse. Ms. Camilleri featured
    prominently in Ms. Strudwicks despicable treatment. Sadly, other employees
    were made to participate in the harassment in at least one way, as the evidence
    indicates that Ms. Camilleri would demand that other workers call Ms.
    Strudwick, even though she could not answer. Ms. Camilleri would then stand
    over these employees to ensure they carried out her orders designed to further
    humiliate Ms. Strudwick. Fearful of themselves becoming the target of Mr. Hoffman
    and Ms. Camilleris ire, the other employees began avoiding Ms. Strudwick.

[70]

Thus not only did a
    managing employee participate in the harassment, he failed to address the
    harassment perpetrated by another employee. The result was a highly poisoned
    work environment.

[71]

As a consequence of
    these two errors, this court is obliged to interfere.

[72]

In order to determine
    the appropriate damage award in this aspect of the claim, it is helpful to
    examine the range of compensation that has been awarded in similar cases. This
    review should be by no means determinative of the ultimate award, however, as I
    agree with Ferrier J.s observation in
Lane
that there should be no
    cap on damages arising from the violation of an individuals human rights. The
    circumstances surrounding the victim and the impact of the abuse are too vast
    to responsibly identify any upper limit.

[73]

Budd v. 783720
    Ontario Inc.
, 2015 HRTO 825, is relevant for its own contribution to the
    range of damages under this head and for the Tribunals canvas of several
    decisions involving discrimination on the basis of disability. There, the
    applicant, a five-year employee of the respondent company, was deemed to have
    quit after she missed work because of an episode of acute anxiety and
    depression. She did not suffer long-term physical or psychological consequences.
    In awarding the applicant $25,000, the Tribunal considered the following case
    law, at paras. 269-71:

In
Simpson v. Commissionaires (Great Lakes)
, 2009 HRTO
    1362, the applicant was awarded $10,000 for compensation for injury to dignity,
    feelings and self-respect where the respondent failed to properly consider the
    applicants need for disability-related accommodation. But in
Simpson
,
    the applicant continued in her employment with the respondent.

In
Krieger

v. Toronto Police Services Board
, 2010
    HRTO 1361, the Tribunal awarded $35,000 for compensation for injury to dignity,
    feelings and self-respect where the respondent failed to accommodate the
    applicants post-traumatic stress disorder and terminated his employment for
    reasons connected to his disability. However, that case involved a lengthy
    discriminatory period of suspension from work which exacerbated the impact on
    the applicant.

In
Lopetegui

v. 680247 Ontario
, 2009 HRTO 1248,
    the Tribunal awarded $20,000 where the applicant was unable to work as a result
    of injuries sustained in a car accident. He provided the respondent with
    medical documentation indicating he was temporarily unable to work and
    requested modified duties. The respondent refused to provide modified work and
    subsequently terminated his employment in part because he had taken a leave of
    absence without permission.

[74]

In my view, the
    circumstances here require damages in excess of those awarded in these cases.

[75]

As to the objective
    seriousness of the conduct, as previously described, Applied Consumers conduct
    was not a one off. Applied Consumer refused every one of Ms. Strudwicks
    requests for accommodation, even those she offered to pay for herself. It then
    took steps to exacerbate the impact of her deafness on her ability to perform
    her job to force her to resign. When that did not work, the company fired her
    for a frivolous and particularly offensive reason and in a manner intended to
    cause maximum embarrassment.

[76]

The effect of this malicious
    and heartless treatment on Ms. Strudwick was significant, as outlined above at
    para. 64. I will not repeat that analysis here, but needless to say Ms.
    Strudwick suffered humiliation and the loss of self-respect, dignity and
    confidence as a direct result of Applied Consumers conduct.

[77]

These circumstances,
    considered in the light of the cases referred to above and corresponding
    awards, lead me to conclude that an award of $40,000 is warranted under this
    head of damages.

(e)

Intentional Infliction of Mental Distress

[78]

The motion judge,
    citing
Boucher v. Wal-Mart Canada Corp.
, 2014 ONCA 419, 120 O.R. (3d) 481, at para. 41, pointed to the
    elements that must be proven in order to make out the tort of intentional
    infliction of mental suffering -
t
he
    defendants conduct must have been flagrant and outrageous, and calculated to
    harm the plaintiff and it must have caused the plaintiff to suffer a visible
    and provable illness.

[79]

The motion judge found
    that this test was met with regard to the treatment to which [Ms. Strudwick]
    was subjected after she became deaf until her dismissal. He accepted that
    Applied Consumers conduct caused Ms. Strudwick to suffer an adjustment
    disorder with mixed anxiety and depressed mood, requiring psychological
    treatment. He awarded $18,984 to Ms. Strudwick to reimburse her for the cost of
    her cognitive behavioural therapy sessions.

[80]

Ms. Strudwick argues
    that this amount is inadequate given Applied Consumers egregious conduct and
    the nature of the mental distress caused. She also submits that the motion
    judge erred by awarding damages based solely on the costs of her treatment by
    failing to award any compensation for the injury itself. Consequently, she
    seeks damages of $150,000 for this tort.

[81]

Ms. Strudwick also
    submits that the evidence before the trial judge was that the therapy sessions
    would be far more effective if she had sign language interpretation, resulting
    in a further cost of $10,440 for total therapy costs of $29,424 rather than
    $18,984.

The Governing Principles

[82]

After the tort of
    intentional infliction of mental suffering has been established, the resulting
    illness provides the measureable damages, and the ordinary principles of
    assessment for damages relating to personal injuries apply. An individual may
    therefore recover pecuniary losses, including medical expenses, and
    non-pecuniary losses, including pain and suffering and loss of amenities of
    life:
Remedies in Tort
, ed. by Linda D. Rainaldi, loose-leaf (Toronto:
    Thomson Reuters Canada Ltd., 2016), at p. 10-24.

The Principles Applied

[83]

In my view, the motion
    judge erred in two ways in his assessment of damages for the tort of
    intentional infliction of mental distress.

[84]

First, he failed to
    consider the increased costs of therapy resulting from Ms. Strudwicks
    permanent deafness. The evidence before him established that optimal treatment
    for Ms. Strudwick would involve a sign language interpreter, or a therapist
    able to utilize sign language. This evidence also included the current rates
    for the services of an American Sign Language interpreter as outlined by the
    Ontario Hearing Society: $120 per interpreter for up to two hours of service,
    plus an Assignment Coordination Fee of $25 per request.

[85]

The motion judge
    accepted that Ms. Strudwick required 18 months of weekly cognitive behavioural
    therapy. This works out to approximately 78 weeks of therapy. Assuming a
    45-minute session, as recommended before the motion judge, the weekly cost for
    an interpreter would be $145. This results in an additional $11,310 in damages.

[86]

Second, the motion
    judge failed to consider the non-pecuniary losses flowing from Applied
    Consumers intentional infliction of mental distress upon Ms. Strudwick. I
    am aware of the concerns of double recovery under this head of damage, given
    the role Mr. Hoffmans misconduct plays in the determination of damages for the
Code
violations and aggravated damages. Nevertheless, I would award an
    additional $5,000 to address Ms. Strudwicks pain and suffering, and loss of
    enjoyment of life.

[87]

As a result, I would
    award a total of $35,294 in damages for the tort of intentional infliction of
    mental suffering.

(f)

Aggravated Damages

[88]

The motion judge, citing
Boucher
, described aggravated
    damages as a compensatory part of contract damages intended to address the
    additional harm suffered because of the way in which the contract was breached.
    Recognizing that such damages are to address employer conduct that is unfair
    or is in bad faith, the motion judge identified the concern over double
    recovery arising out of awarding such damages in addition to those awarded based
    on pay in lieu of notice, the breach of the
Code
and the tort of intentional infliction of mental distress, and
    declined to make any award under this head of damage.

[89]

Ms. Strudwick argues that the manner of dismissal here was more
    egregious than in
Boucher
and submits that this court should award
    $200,000 for aggravated damages.

The Governing Principles

[90]

In
Keays
, at
    paras. 50-55, Bastarache J. traced the development of damages for conduct in
    the termination of employment and concluded, at para. 57, that [d]amages
    resulting from the manner of dismissal must then be available only if they
    result from the circumstances described in
Wallace
, namely where the
    employer engages in conduct during the course of dismissal that is unfair or
    is in bad faith by being, for example, untruthful, misleading or unduly
    insensitive. As the court in
Wallace
held employers to an obligation
    of good faith and fair dealing in the manner of dismissal, failure to act in
    such a manner can lead to foreseeable, compensable damages:
Keays
, at
    para. 58.

[91]

In terms of
    quantifying damages resulting from the manner of termination, Bastarache J.
    stated, at para. 59:

[T]here is no reason to retain the distinction between true
    aggravated damages resulting from a separate cause of action and moral damages
    resulting from conduct in the manner of termination. Damages attributable to
    conduct in the manner of dismissal are always to be awarded under the
Hadley
principle. Moreover, in cases where damages are awarded, no extension of the
    notice period is to be used to determine the proper amount to be paid. The
    amount is to be fixed according to the same principles and in the same way as
    in all other cases dealing with moral damages. Thus, if the employee can prove
    that the manner of dismissal caused mental distress that was in the
    contemplation of the parties, those damages will be awarded not through an
    arbitrary extension of the notice period, but through an award that reflects
    the actual damages.

[92]

Finally, Bastarache J.
    cautioned that courts must take care to retain the fundamental nature of
    damages for conduct in dismissal. In the case of damages for the manner of
    dismissal, that means remembering that the award is compensatory and avoiding
    the pitfall of double-compensation or double-punishment:
Keays
, at para.
    60.

The Principles Applied

[93]

I agree with the
    motion judge that there is some overlap between the damages Ms. Strudwick
    claims under this head of damages and those awarded for wrongful dismissal (in
    particular, the $8,400.18 awarded for the 
Wallace
factor), the violation
    of the
Code
and the tort of intentional infliction of mental distress.

[94]

However, given the
    extreme bad faith and unfair treatment exhibited by Applied Consumer in the
    manner in which it dismissed Ms. Strudwick and its impact on her, I am of the
    view that the motion judge erred in holding that there was a complete overlap.

[95]

In terms of the
    appropriate amount for aggravated damages, this case is similar to
Boucher
,
    in which this court upheld a $200,000 aggravated damages award against
    Wal-Mart. In
Boucher
, the damage award flowed from the manner in which
    Wal-Mart dealt with the misconduct of one of its employees, Mr. Pinnock,
    and Ms. Bouchers complaints about that misconduct. As Laskin J.A. explained,
    at para. 72:

Wal-Mart took no steps to bring an end to Pinnocks misconduct.
    It did not take Bouchers complaints seriously, finding them unsubstantiated
    despite substantial evidence from co-workers that they were
    well-founded. It failed to enforce its workplace policies, which on their
    face were designed to protect employees from the kind of treatment Pinnock
    subjected Boucher to. And it threatened Boucher with retaliation for
    making her complaints, an especially vindictive act. Despite all of this
    Boucher was willing to continue to work at the store if Wal-Mart addressed her
    complaints about Pinnock. Only when Wal-Mart refused to do so, did Boucher
    resign. These considerations show that Wal-Marts own conduct justified a
    separate and substantial award for aggravated damages.

[96]

In response to Mr. Pinnocks
    conduct and Wal-Marts failure to do anything about it, Ms. Boucher experienced
    stress, could not eat or sleep, and suffered from various medical symptoms,
    including weight loss. She was prescribed a sedative and referred to a psychiatrist.
    Her symptoms cleared up once Mr. Pinnock was no longer a part of her life:
Boucher
, at paras. 37-38, 52.

[97]

At a similarly high
    end of the scale, in
Pate Estate v. Galway-Cavendish and Harvey (Township)
,
    2013 ONCA 669, 117 O.R. (3d) 481, the respondent, Mr. Pate, was awarded
    $100,000 for mental distress ($75,000 in aggravated damages plus $25,000 in
Wallace
damages). The appellant did not appeal that award. Mr. Pate had been
    terminated on the alleged basis that his employer had uncovered discrepancies with
    respect to building permit fees. Mr. Pate was not provided with particulars,
    but told that if he resigned, the Township would not contact the police. Mr.
    Pate refused to resign and his employment was terminated. The appellant in that
    case subsequently pressured individuals within the O.P.P. to lay charges. Mr.
    Pate was acquitted, but he remained in the public spotlight for three years and
    did not obtain employment in the municipal field again.

[98]

At a different end of
    the scale, the court in
Middleton v. Highlands East (Municipality)
, 2013
    ONSC 763, awarded $30,000 in aggravated damages where the plaintiff received no
    procedural fairness (being terminated without investigation into the concerns
    prompting the termination and without being advised of the concerns), was not
    paid his statutory minimums, was not provided with a letter of recommendation,
    and had a record of employment stating he did not meet the expectations of his
    position. He suffered embarrassment, damage to his self-worth and self-esteem, interference
    with his sleep and strains in his relationships with others.

[99]

In my view, Applied
    Consumers conduct here was just as egregious as Wal-Marts conduct in
Boucher
,
    almost as reprehensible as the Townships conduct in
Pate Estate
and
    considerably worse than that in
Middleton
.
[5]

[100]

I am aware that
    this conduct has been discussed in detail earlier in these reasons; but it is
    important to bear in mind certain relevant aspects in order to put my view of
    the appropriate quantum of aggravated damages in perspective.

[101]

In the immediate
    lead-up to her dismissal, Ms. Strudwick was confronted in front of an estimated
    13 other employees, yelled at and called a goddamned fool. She was then
    informed of her termination for a senseless reason. Paperwork had been prepared
    by the company that was designed to deprive her of various legal rights. When
    she would not sign, she was not given money the company then owed her. She was
    further humiliated by having to gather her belongings and leave under the stares
    of co-workers.

[102]

The abuse did
    not cease after termination. Government intervention was needed before Applied
    Consumer gave Ms. Strudwick the pay it owed her at the time of dismissal.  Then
    the company tendered a record of employment that delayed Ms. Strudwicks entitlement
    to receive employment insurance.

[103]

This conduct
    resulted in lasting psychological harm to Ms. Strudwick. As previously noted,
    she was diagnosed with an adjustment disorder with mixed anxiety and depressed
    mood requiring prolonged weekly cognitive behavioural therapy.

[104]

Taking all of
    this abuse into account, I would award Ms. Strudwick $70,000 for aggravated
    damages. From this amount the award of $8,400.18 for the 
Wallace
factor must be deducted to prevent overlap, resulting in a further $61,599.82 under
    this head of damages.

(g)

Punitive Damages

[105]

The motion judge
    identified this aspect of Ms. Strudwicks claim as dealing with the independent
    and actionable wrong the Supreme Court addressed in
Whiten
. He emphasized,
    among other things, that such damages are the exception, designed to respond to
    highly reprehensible conduct to mark the communitys condemnation and deter
    others from such conduct. The motion judge noted that punitive damages should
    be awarded only when compensatory damages are insufficient.

[106]

The motion judge
    held that Applied Consumers misconduct was deliberate. It was designed to
    force Ms. Strudwick to quit her job. Furthermore, the abuse persisted for six
    months prior to her dismissal that the company attempted to justify on the
    inane and insulting basis that she misbehaved at the Toastmasters event.

[107]

The motion judge
    recognized the relevance of the impact of any such award on the financial
    wherewithal of the wrongdoer.

[108]

Against this
    background the motion judge found that the approximately $94,940 he had awarded
    under the other heads of damage was insufficient to deter others from engaging
    in conduct of this nature. On this basis he assessed punitive damages at
    $15,000.

[109]

Ms. Strudwick
    submits that the motion judge erred in failing to take into account the manner
    in which Applied Consumer responded to her legitimate claims arising out of her
    wrongful dismissal and related treatment and overall awarded damages in this
    category that are manifestly too low. She asks this court to award her $150,000
    for punitive damages.

The Governing Principles

[110]

In
Keays
,
    at para. 62, Bastarache J. succinctly reviewed the evolution of punitive
    damages:

In
Vorvis
, McIntyre J., for the majority, held that
    punitive damages are recoverable provided the defendants conduct said to give
    rise to the claim is itself an actionable wrong. This position stood until
    2002 when my colleague Binnie J., writing for the majority, dealt
    comprehensively with the issue of punitive damages in the context of the
Whiten
case. He specified that an actionable wrong within the
Vorvis
rule
    does not require an independent tort and that a breach of the contractual duty
    of good faith can qualify as an independent wrong. Binnie J. concluded, at
    para. 82, that [a]n independent actionable wrong is required, but it can be
    found in the breach of a distinct and separate contractual provision or other
    duty such as a fiduciary obligation.

[111]

Bastarache J.
    also repeated the courts earlier cautionary notes as to the awarding of
    punitive damages, stating, at para. 68:

[T]his Court has stated that punitive damages should receive
    the most careful consideration and the discretion to award them should be most
    cautiously exercised (
Vorvis
, at pp. 1104-5). Courts should only resort
    to punitive damages in exceptional cases (
Whiten
, at para. 69). The
    independent actionable wrong requirement is but one of many factors that merit
    careful consideration by the courts in allocating punitive damages. Another
    important thing to be considered is that conduct meriting punitive damages
    awards must be harsh, vindictive, reprehensible and malicious, as well as
    extreme in its nature and such that by any reasonable standard it is deserving
    of full condemnation and punishment (
Vorvis
, at p. 1108).

[112]

In distinguishing
    punitive damages from damages for conduct in the manner of dismissal, so as to
    avoid duplication in damage awards, Bastarache J. explained, at para. 62, that
    [d]amages for conduct in the manner of dismissal are compensatory; punitive
    damages are restricted to
advertent wrongful acts that are so malicious and
    outrageous that they are deserving of punishment on their own
 (emphasis
    added). He noted that, even had the circumstances in
Keays
justified
    an award of punitive damages, the lower courts should have questioned whether
    the allocation of punitive damages was necessary for the purposes of
    denunciation, deterrence and retribution, once the damages for conduct in
    dismissal were awarded, given the same conduct underlay the awards under both
    heads of damages: para. 69.

The Principles Applied

[113]

It is true that
    the same conduct underlies the awards under both punitive damages and damages
    for conduct in dismissal. However, such will invariably be the situation. What
    justifies punitive damages ultimately is the conclusion, in exceptional cases,
    that compensatory damages are simply insufficient to respond to the conduct
    being addressed.

[114]

I agree with the
    motion judge that this is such a case. In my view, Applied Consumers conduct in
    relation to Ms. Strudwick, who the evidence demonstrates was a highly regarded,
    long-term, faithful employee who became profoundly disabled late in life, can
    only be described as a marked departure from any conceivable standard of decent
    behaviour. Such conduct deserves punishment on its own. The imposition of
    punitive damages is necessary for the purposes of denunciation, deterrence and
    retribution.

[115]

With respect,
    however, I am of the view that in assessing the quantum of punitive damages the
    motion judge fell into legal error in two respects. First, he viewed Applied
    Consumers failure to try to conceal the misconduct or failure to profit from
    the misconduct as mitigating the companys level of blameworthiness. I
    disagree.  In my view, in the circumstances of this case, these factors are
    neutral. Second, the motion judge over-emphasized the impact of a damage award
    on the company, particularly given the lack of evidence about the companys
    financial situation. In my view, these errors led the motion judge to award an
    amount insufficient to accomplish the objectives of retribution, deterrence and
    denunciation. As a result, this court is justified in conducting its own
    analysis of the appropriate quantum of punitive damages.

[116]

As I would
    already hold Applied Consumer responsible for significant compensatory damages
    for its treatment of Ms. Strudwick, as indicated above, it is necessary to
    determine the appropriate amount of punitive damages having regard to this
    amount. I am also mindful of the impact of the additional amounts awarded,
    totaling $192,850.79, and that punitive damages can only be awarded where the aggregate
    amount of compensatory damages is insufficient to accomplish the objectives of
    retribution, denunciation and deterrence.

[117]

In
Boucher
,
    involving similar circumstances, this court reduced amounts awarded by the jury
    to a total of $110,000 for punitive damages.
[6]
However, I regard Applied Consumers conduct as being significantly more
    egregious than that in
Boucher
. The misconduct lasted longer  in
Boucher
,
    it was six months; here, Ms. Strudwick was victimized for years, taking into
    account her treatment pre- and post-dismissal. I also note that, unlike in
Boucher
,
    the motion judge specifically found that Applied Consumer embarked upon its
    campaign of abuse to force Ms. Strudwicks resignation.

[118]

That said, the
    financial resources of Applied Consumer are of some relevance. In
Boucher
,
    the employer was a very large multi-national corporation. And, while the
    evidence is scant, the record does indicate that Applied Consumer is a
    relatively small, family-held company with approximately 80 employees.

[119]

Taking the
    various relevant factors into consideration, I would award Ms. Strudwick $55,000
    in punitive damages.

(h)

Total Damages

[120]

The increases
    under the various heads of damages above result in a total of $247,850.79.
    After subtracting the $6,049.92 awarded for the cost of replacing benefits, the
    amount is $241,800.87. As Ms. Strudwick is limited by the amount claimed in the
    statement of claim, I must reduce the overall total by $1,800.87. As a result,
    the amount awarded would be $246,049.92.

APPEAL  CONCLUDING COMMENTS

[121]

In my view, it
    is necessary to respond to Applied Consumers argument that any penalties
    should not be visited on the company, but rather on Mr. Hoffman.

[122]

I reject this
    argument. First, Applied Consumer was Ms. Strudwicks employer. Any damages
    flowing from her wrongful dismissal, and the manner in which she was dismissed,
    are properly visited upon it.

[123]

Second, in
    Applied Consumers own words, during Mr. Bertas absence Mr. Hoffman took over
    running the business. Applied Consumer cannot escape responsibility for the
    actions of its agents. An employer is jointly and severally liable for the
    tortious conduct of an agent acting with express, implied or apparent
    authority: Gerald Fridman,
Canadian Agency Law
, 2nd ed. (Markham:
    LexisNexis Canada Inc., 2012) at p. 294. And as discussed above, Applied Consumer
    is also vicariously liable under the
Code
for Mr. Hoffman and Ms.
    Cavilleris harassment of Ms. Strudwick based on her disability.

[124]

Moreover, although
    Mr. Berta terminated the employment of Mr. Hoffman following his return to
    work, Applied Consumer continued to do everything possible to avoid complying
    with its obligations to Ms. Strudwick.

[125]

One final point
    must be made clear. While I would allow the appeal and increase the damages as
    indicated above, it is important to remember that I have determined the amounts
    I would award in relation to the various heads of damages in the light of my
    conclusion that the aggregate amount this court can award is limited by the
    total amount claimed in the statement of claim.

THE APPEAL AND CROSS-APPEAL ON COSTS

[126]

In addressing
    costs, the motion judge expressed the view that an inordinate amount of time
    had been spent on preparing the default judgment materials. Mindful of the need
    to impose a proportionate amount of costs, that were fair and reasonable in
    accordance with the principles in
Boucher
, the motion judge fixed
    costs in the amount of $40,000 inclusive of disbursements and applicable taxes.

[127]

I see no error
    in this award of costs. I would therefore not give effect to Ms. Strudwicks
    submissions that they are too low or grant Applied Consumer leave to appeal the
    costs award on the basis that the award is too high.

DISPOSITION

[128]

For these
    reasons, I would allow the appeal, set aside the judgment and substitute a
    judgment in the amount of $246,049.92. I would dismiss Applied Consumers
    application for leave to appeal costs. Further to my review of the parties
    costs submissions, I would award Ms. Strudwick her costs of this appeal in the
    amount of $20,000 inclusive of disbursements and applicable taxes.

Gloria
    Epstein J.A.

I
    agree Doherty J.A.

I
    agree B.W. Miller J.A.

Released: June 30, 2016 DD





[1]
Counsel for Ms. Strudwick consented to counsel for Applied Consumers making
    limited submissions on the issue of appropriate pay in lieu of notice.



[2]
The Supreme Court in
Burkhardt
paraphrases r. 147 and does not provide a
    direct citation beyond the Ontario Rules of Practice; however, this appears
    to have been the wording at the time of the decision.



[3]

Bardal v. Globe & Mail Ltd.
(1960), 24 D.L.R. (2d) 140 (Ont. H.C.J.).



[4]
In conducting this analysis, I have considered Angela Swans paper,
At the Intersection of Contract and Tort: Risk, Valuation, Interest
    and Timing delivered at the National Judicial Institutes seminar on Common
    Law Rights and Remedies (19 May 2016), which helpfully canvasses this issue.



[5]
I recognize that the damages awarded in
Boucher
were larger than those
    in
Pate Estate
. I would note, however, that the damages in
Boucher
were awarded by a jury, and this court was not persuaded that the jurys view
    of the amount [was] so plainly unreasonable that it ought to [have been reduced]:
    para. 77. The damages in
Pate Estate
, in contrast, were awarded by the
    trial judge and were not appealed.



[6]
Representing a $100,000 award against Wal-Mart and a $10,000 award against Mr.
    Pinnock.


