National Post Profile today

National Post writer Jack Kohane interviewed me last month about some of the things I do after office hours. His very kind article was published in today's Post.

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-Garry J. Wise, Toronto

Visit our Website: www.wiselaw.net

$1 Million damages for Mental Suffering to BC Employee

Sulz v. Attorney General of Canada

The British Columbia Supreme Court has awarded Nancy Sulz, a former RCMP officer, damages of nearly $1 million to compensate her for mental suffering arising from her supervisor's workplace misconduct. Ms. Sulz was stationed with the force in Merritt, B.C., a small town of 8,000, located 271 Kilometres (168 miles) northeast of Vancouver.

She was with the force for 12 years, from 1988 to 2000. She left her position with a medical discharge that she had agreed to on the specified condition that it would not interfere with her pending litigation.

By the time Ms. Sulz left the force, an ongoing pattern of harassment, demeaning comments and threats of job-reprisal by her superiors had left Ms. Sulz clinically depressed and medically unable to ever resume her employment with the force.

Examples of alleged demeaning comments included the following statements by her supervisor, a Staff Sergeant Smith:

"Open your eyes and look at the fucking books;"

"If she thinks she's going to sit around on her fat ass and be paid for it, she has another think coming [sic];"

"Get her ass down here and sign these forms"; and

"You want sexual harassment, I'll show you fucking sexual harassment."

The Court awarded Ms. Sulz general damages of $125,000.00, together with compensation for past loss of wages of $225,000.00 and further compensation for loss of future income earning capacity in the sum of $600,000.00.

Total awarded: $950,000.00 plus legal costs.

(Extended portions of the Judgment are excerpted below).

The Sulz decision is an extremely important Judgement, and follows the groundbreaking trend set in the 2005, Ontario Superior Court decision in Keays v. Honda.

In the Keays case, a former Honda Canada worker was awarded two years' salary in lieu of notice plus $500,000 in punitive damages for harassment and discrimination. Mr. Keays, who suffered from chronic fatigue syndrome that emerged in the later years of his 14 year tenure with Honda, was exposed to progressive discipline by his employer for absence due to his illness. Ultimately, his employment was terminated. The Court held that Honda had wrongfully dismissed and discriminated against Mr. Keays. The damages awarded were unprecedented.

We appear to be at the beginning of an era in which employees are increasingly being awarded significant compensatory and punitive damages in cases which involve supervisors' harassment, discrimination and derogatory conduct in the workplace.

This emerging trend clearly should be taken as a wake-up call to employers - employees do have remedies for such misconduct, and the Courts do not take these matters lightly.

- Garry J. Wise, Toronto

Honda case update - March 20, 2006 - Bar-ex reports that Mr. Keays, the Plaintiff in the Honda case, has now also been awarded costs of $610,000, inclusive of disbursements and GST. The matter is scheduled for appeal on April 3, 2006.

- Garry J. Wise, Toronto

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Excerpts from the Judgment of The Honourable Mr. Justice Lamperson in Sulz v. Attorney General :

The plaintiff, a former female member of the Royal Canadian Mounted Police ("RCMP"), claims that her immediate supervisors intentionally, or negligently, harassed her to the extent that she became so clinically depressed, she had no choice but to accept a medical discharge.

...the plaintiff's physical and mental health had deteriorated badly. She had lost her appetite, was twenty pounds underweight, was unable to sleep properly, and was constantly on the verge of tears. On June 27, she saw her family doctor who advised her to go on sick leave and gave her a note to that effect.

..."I am becoming terrified to come to work, I cannot eat or sleep, I'm on the verge of tears constantly and I'm starting to become convinced it is my fault. I cannot work under these conditions and fear for both my safety as well as my physical and emotional well-being. I am very sorry that this had to come down to this because I feel that I am probably going to be the one to suffer the consequences by being transferred. I do not want to leave Merritt at this point, however, I cannot continue to live and work under these conditions."

...On February 4, 1996, Dr. Carmichael diagnosed the plaintiff as having a major depressive disorder. The plaintiff's weight hovered around 100 lbs. She was not sleeping properly, had difficulty remembering things, and was generally in poor mental and physical health. Dr. Carmichael told the plaintiff to take sick leave, and telephoned the detachment himself to notify her superiors.

...Dr. Carmichael then received an angry phone call from Staff Sergeant Smith, who asked for details of the plaintiff's medical condition, alleged that the plaintiff had manipulated Dr. Carmichael, questioned Dr. Carmichael's ability to do his job, and informed him that the plaintiff might have a drug-dependency problem. The plaintiff believes that Staff Sergeant Smith also reported the drug allegation to RCMP headquarters because headquarters made telephone inquiries with her family doctor, who in turn, notified her.

Following that examination, the new divisional representative, Staff Sergeant Howarth, interviewed the plaintiff at her home. On June 24, 1997, Staff Sergeant Howarth sent a report to Chief Superintendent Hrankowski, the officer in charge of administration and personnel for E Division. In his report, Staff Sergeant Howarth acknowledged that his information came from Dr. Carmichael and the plaintiff. He wrote amongst other things: "There is always another side to this BUT if any of this is true, S/Sgt. Smith should not be in the position he is in. I have no reason to doubt Cst. Wilson or Dr. Carmichael." Staff Sergeant Howarth also noted: "Another question that has to be researched is the fact that S/Sgt. Smith may have been investigated for harassment of a female member a few years ago while stationed in the Yukon and the outcome is believed to be founded. If this is true WHY is this man still in a command position?"

The prior episode of harassment to which Staff Sergeant Howarth referred allegedly occurred when the defendant Smith was posted to the Watson Lake detachment between 1986 and 1991.

He was in charge of that detachment and had supervisory authority over Constable Telup, a female First Nations RCMP member. Constable Telup described incidents in which the defendant exhibited intemperate and insensitive behaviour as well as an incident in which he allegedly made improper sexual advances. Constable Telup did not make a complaint at the time, but eventually went on stress leave.

...Inspector Hanniman's detailed report was submitted in evidence before this court. Although it is a slightly edited version, it is Inspector Hanniman's product to which nothing has been added. Based on that report, Chief Superintendent Cameron, the officer in charge of human resources for E Division, notified the plaintiff in writing on September 4, 1998, that the investigation was concluded, that her allegations of harassment had been substantiated, but that no disciplinary action could be taken with respect to Staff Sergeant Smith because he had retired from the RCMP in April 1998.

...Broadly stated, the defendant denied making any derogatory or inappropriate comments about the plaintiff in the presence of detachment personnel. He agreed that the plaintiff's performance as a police officer was of concern and that she was, from time to time, the subject of private discussions between him and Sergeant Angel. Smith denied, however, that these conversations included comments that they would "get her" when she returned to work, that she would pay dearly for her mistakes, that she was screwing the system by taking six months off, or that she had gotten pregnant to screw the force. He admitted discussing the possibility that the plaintiff was afraid of the dark with Sergeant Angel, but says that this was done in private.

... The only explanation that Smith gave when cross-examined about the fact that some of these admitted discussions became common knowledge within the detachment was that the walls in the detachment were very thin.

...However, this evidence must also be considered in context. The RCMP is a paramilitary organization. One of the functions of the supervising non-commissioned officers is to critique the work of their subordinates in an effort to increase their knowledge and skills. The culture in the RCMP was, until comparatively recently, male-oriented, direct, and undiplomatic, while the plaintiff was, on occasion, overly sensitive.

Her supervisors should have been more sensitive in their use of criticism as a teaching technique, and should have dealt with the problem of her repeated absences in a different manner. Although the defendant Smith asserts that he was merely trying to point out to the plaintiff where improvement was needed to assist her in her development as an RCMP officer, the plaintiff cannot be faulted for believing that his comments, like those made in the letter that he had a staff member read over the telephone to her and those contained in the memorandum rejecting her application for a transfer to the highway patrol, went far beyond constructive criticism.

NEGLIGENT INFLICTION OF MENTAL SUFFERING

... A successful claim of negligence must demonstrate that the defendant owed the plaintiff a duty of care, that the defendant breached that duty of care, and that damages or injury resulted from that breach.

The defendant Smith, as the officer in charge of the Merritt detachment and the plaintiff's commanding officer, owed a duty of care to the plaintiff. It was his duty to ensure that she could work in a harassment-free environment, as is required by various anti-harassment policies that the RCMP has in place.

There is no question that Smith breached that duty. The evidence demonstrates that he was prone to angry outbursts, particularly when it pertained to the plaintiff. This was substantiated from a number of sources.... Smith should have known that his intemperate and, at times, unreasonable behaviour would have negative consequences for the members of the detachment generally and the plaintiff in particular.

It is obvious that he did little to curb his temper or prevent the rumours that were circulating about the plaintiff, even though he ought to have known, certainly after receiving a copy of the plaintiff's Statement A if not before, that he was causing serious emotional problems for the plaintiff at a time when she was facing significant personal pressures due to her pregnancies. His frequent outbursts and his cutting comments were major causes of the troubled work environment that the plaintiff experienced. It is clear that the defendant Smith violated the RCMP harassment policy, and consequently, breached the standard of care he owed to the plaintiff as a member under his command.

In the circumstances of this case, foreseeability and remoteness are not significant issues. The RCMP established and distributed harassment policies after women were allowed to join the force. All members knew or ought to have known that these policies were meant to forestall harm such as that which occurred here.

Did the defendant's harassment cause or materially contribute to the plaintiff's health problems? The defendants pointed to the fact that the plaintiff had many sources of stress in her life. She had three children within three-and-a-half years.... In other words, defence counsel suggested that it is the plaintiff's personality and the stresses unrelated to her work that is the source of her current problems.

There is merit to this argument. To use a well-known euphemism, the question is whether she had a "thin skull or a crumbling skull?"

There is no doubt that the plaintiff suffers from depression. Dr. Carmichael, in a letter dated August 20, 2003, stated: "Ms. Sulz' s diagnosis according to the DSM-IV criteria has been Major Depressive Disorder, single episode, chronic, with anxiety and irritability features." He went on to say:

Symptoms have included combinations of depressed mood, loss of interest/pleasure in things once enjoyed, low self-esteem, irritability, loss of appetite and weight loss such that at one time hospitalization was considered, significant anxiety, fatigue/loss of energy, strong feelings of guilt, low libido, cognitive impairment (concentration, memory, decision-making), social withdrawal, psychomotor retardation, and persomnia/unrefreshing sleep. Thus, she has not been able to pursue gainful employment since the condition was diagnosed in 1996 due to her condition and its unpredictability. It is clear to me that she can never return to police or related work. 156]

Further on in his letter, Dr. Carmichael states that the "proximal cause of the depression is the long period of work place harassment by the detachment commander at the time, S/Sgt. D. Smith, and by two of his subordinates."

...Although there are many other stresses in the plaintiff''s life, and although she may tend to personalize incidents that others might not, the evidence as a whole shows that the harassment which she experienced in 1994 and 1995 was the proximate cause of her depression, which in turn, ended her career in the RCMP.

The plaintiff has therefore successfully established that the defendant Smith's breach of the duty of care he owed to her caused her serious psychological harm. Although Smith himself is protected from liability for his negligence by s. 21 of the Police Act, the plaintiff has a valid claim for damages against the Provincial Crown based on the principle of vicarious liability.

UPDATE: January, 2007: B.C. Court of Appeal Upholds Sulz $950,000.00 Damages Award

- Garry J. Wise, Toronto

Visit our Employment Law Page: www.wiselaw.net/employment.html

Canadian Spousal Support Advisory Guidelines - Update

I last wrote about the proposed Spousal Support Guidelines in May 2005, to discuss the general features of the new advisory guideline recommendations.

I came across this very interesting summary of how the Courts have been applying the Guidelines in decided cases throughout Canada. As you will note, the Spousal Support Guidelines have had varying degrees of influence, but as at the date of the summary (July 2005), they were increasingly emerging as a starting point for consideration of the quantum and duration of spousal support Orders.

This observation is consistent with our general experience to date in Ontario.

Visit our Family Law Pages: www.wiselaw.net/family.html

Roll up the Rim and Sue

This today, at CP24 (from my friend Mike Fata)

... In fact, to find the one issue that seems to have transfixed so many, you have to journey down the 401 to Saint-Jerome, Quebec and enter a local Tim Horton’s. That’s where a man who works at a local school bought a coffee, took it with him to work and threw it out in the trash.

It was retrieved by a 10-year-old girl, who asked another student to help her roll up the rim to see if she’d won anything. And as it turns out she had – a Toyota SUV worth almost $30,000. Since then, the drama has deteriorated into an almost embarrassing farce, with three different parties – the man who bought the coffee, the family of the girl who found the cup and the parents of the child who rolled up that rim – all insisting they are the ones who really have claim to the bounty.

Now the lawyer for the coffee buyer is demanding a DNA test to show he’s the real winner – even if he did throw away the winning cup.

The story has become a cause celebre across the country and everyone’s talking about it – when else – during their coffee break. “I think it's only fair to share the prize, I think its unfair not to,” suggests Harry Mohabir as he sips some java at the Eaton Centre. Ida Mancini doesn’t agree. “In all fairness, I think the girl that found the cup, she should keep it,” she insists.

Lawyers, who are the only ones reaping the benefits of the bizarre dispute, admit it’s a tricky area of law. “It's not cut and dried because it is going to depend on a lot of different factors,” contends property lawyer Kelly Moffatt. “The contest sponsors can never really know, no matter how tight their legal rules are, how the contest entrants are gonna respond and what all of those facts are gonna be that are in play.”

In other words, Tim Horton’s is brewing up a lot of publicity without having to do anything. And that’s something money can’t buy. As for settling the dispute, the company notes the person who submits the winning rim is eligible to collect the prize.

But like just about everything els in this twisted case, that decision can be challenged in court. And you can bet given the animosity already shown so far, it probably will be.

Link: http://www.pulse24.com/Business/Top_Story/20060314-002/page.asp

Visit our website: www.wiselaw.net

Child Support Guidelines - Changes Ahead in May 2006

On May 1, 2006, the Canadian Child Support Guidelines will be updated with significant amendments.

Among the most important of these changes is that the child support tables have been revised and monthly basic support payments will be increasing.

The amendments will also affect how the Courts determine whether certain kinds of discretionary extraordinary expenses will require contribution by a support payor. In particular, expense claims for primary and secondary education costs and extracurricular activity expenses will be affected. Claims for day-care, medical and post-secondary education costs are not affected by the amendments.

TABLE AMOUNTS TO CHANGE

The monthly "basic support" tables have been updated, and. the required basic support amounts will be increasing as of May 1, 2006.

For example, the monthly child support payable by an Ontario parent of two children will increased as follows:

Income ------New Guidelines------------ Current Guidelines
$50,000 ----------$753.00 -----------------------$700.00
$70,000 ----------$1029.00---------------------- $927.00
$100,000--------- $1404.00--------------------- $1240.00


EXTRAORDINARY EXPENSES - Section 7 of the Guidelines

The new version of Section 7 gives Courts much increased flexibility in determining whether certain extraordinary expenses will require additional financial contribution by a support payor.

The new Guidelines will affect claims for contribution by a payor to extraordinary expenses for:

• primary or secondary school education or for any other educational programs that meet the child's particular needs, and
• extraordinary expenses for extracurricular activities.

A custodial parent requesting such contribution must demonstrate that the requested extraordinary expense cannot reasonably be covered by the basic support payable.

This "reasonable coverage" requirement may well impose a new threshold or test for determining whether additional contribution to an expense is required.

At the very least, the Courts are to be given a widened discretion by this amendment.

While this may be seen as codifying a discretion that has to some extent already been exercised, it does open up a significant statutory front for resistance by payors to claims for contribution toward the specified extraordinary expenses.

The new Section 7 is reproduced below:

These amendments do not affect the requirement of contribution for day care and child care expenses, medical and dental expenses, or the costs of post secondary education. These expenses will continue to be assessed, taking into account:

• the necessity of the expense in relation to the child's best interests
• the reasonableness of the expense in relation to the means of the spouses and those of the child, and
• the family's spending pattern prior to the separation.

For a full text of the new Guideline tables and amendments, see:
http://canadagazette.gc.ca/partII/2005/20051214/pdf/g2-13925.pdf#page=356

- Garry J. Wise, Toronto

Visit our Ontario Family Law Pages at: www.wiselaw.net/family.html