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Simon Shields, LLB

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Torts - Intentional Infliction of Mental Suffering

Damages - Aggravated

Damages - Punitive

Damages - Loss of Earning Capacity

Boucher v Wal-Mart Canada Corp. (Ont CA, 2014)

In this wrongful dismissal case the Court of Appeal addressed the elements of the tort of intentional infliction of mental suffering:
[41] The tort of intentional infliction of mental suffering has three elements. The plaintiff must prove:
• The defendant’s conduct was flagrant and outrageous;

• The defendant’s conduct was calculated to harm the plaintiff;

• The defendant’s conduct caused the plaintiff to suffer a visible and provable illness.
See Prinzo v. Baycrest Centre for Geriatric Care 2002 CanLII 45005 (ON CA), (2002), 60 O.R. (3d) 474 (C.A.).

......

[44] The plaintiff cannot establish intentional infliction of mental suffering by showing only that the defendant ought to have known that harm would occur. The defendant must have intended to produce the kind of harm that occurred or have known that it was almost certain to occur: see Piresferreira, at para. 78.
The court also engaged in an extended and informative discussion of the principles applicable to awards of aggravated and punitive damages, and how they interact [see paras 65-94], particularly the point that in a contract case an indpendently actionable tort is required before punitive damages can be awarded.

Lastly the case suggests that, on the right facts, a claim for loss of earning capacity is conceivable in a wrongful dismissal context (ie. where earning capacity remains diminished after the determined notice period has expired) [see paras 101-107].

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