Human Rights Office

Human Rights Office
Human Rights Office

Colistro v. Tbaytel, 2017 ONSC 2731

 

Background:

Linda Colistro was hired by the City of Thunder Bay in the telephone department as a summer student in 1988 and became a fulltime employee in 1990.

On January 1, 2005, pursuant to s. 197(1) of the Municipal Act, 2001, S.O. 2001, the City created Tbaytel, a Municipal Services Board.

Summary:

On January 29, 2007 Tbaytel held a meeting to discuss re-organization of the company, the President and CEO Peter Diedrich announced Steve Benoit, and a former employee who had been terminated in 1996 had been hired in the role of Vice-President Business Consumer Markets.

At the time of his termination in 1996, Mr. Benoit had been Ms. Colistro’s immediate supervisor.  Upon his re-appointment, Ms. Colistro emailed her direct supervisor, Ken Esau, and left immediately following the restructuring meeting.

Ms. Colistro, her husband, Mr. Esau, and Christine Seeley, Vice-President of Human Resources, met and Ms. Colistro informed them that Mr. Benoit had been terminated in 1996 as a result of his harassment of herself and others.  In this meeting Ms. Seeley stated that there was no record of any such complaint from 1994/5 and that Ms. Colistro could have her old position back so she did not have to be in the same building as Mr. Benoit. Ms. Colistro informed them that she felt this was a demotion and declined switching job positions.

Following the January 29, 2007 restructuring meeting, Ms. Colistro did not return to work. 

In summer 2007, Ms. Colistro’s counsel sent a letter stating that Ms. Colistro would return to work so long as she would remain in the same position she previously held and with the condition that she have no contact with Mr. Benoit.  Tbaytel’s counsel responded stating that there would be significant exposure to Mr. Benoit given the nature of his position and again offered the option of returning to her previous position with the company, in a different building.  Ms. Colistro declined both options, as one was a demotion and the other involved significant contact with Mr. Benoit.

After several failed meetings with her employer she ultimately went on short-term and then long-term disability leave and was placed under the care of a physician for depression, anxiety, and a panic disorder.

The proceedings revealed that Ms. Colistro’s claims against Mr., Benoit from 1994/5 were investigated, contrary to Ms. Seeley’s assertion in the first meeting. Ms. Colistro had kept all correspondence and documentation from the investigation, including letters to Mr. Benoit about his suspension pending the outcome of an investigation with respect to sexual harassment, resulting in Mr. Benoit’s termination from his position.

Questions to be Determined?

  1. Does the rehiring of Mr. Benoit rise to the level of Intentional Infliction of Mental Suffering?
  2. Does the resolution offered by Tbaytel constitute Constructive Dismissal?

Findings:

  1. In order for Intentional Infliction of Mental Suffering to be established, three elements must be present, it must be:
    1. Flagrant or outrageous conduct; (YES)
    2. Calculated to produce harm; (NO)
    3. Resulting in a visible and provable illness. (YES)
  2. Does the resolution offered by Tbaytel constitute Constructive Dismissal? (YES)

Reasoning:

The court determined that the plaintiff had not satisfied all three required elements of the tort of intentional infliction of mental suffering.

Noting that Tbaytel did undertake an information gathering period after Ms. Colistro brought to their attention what occurred in 1994/5, they did not interview any of the individuals who were interviewed in 1995, nor did they interview Mr. Benoit or Ms. Colistro and nonetheless did determine that the sexual harassment occurred in 1994/5.

The plaintiff is required to prove on a balance of probabilities that Tbaytel knew the kind of harm (PTSD and major depressive disorder) rehiring Mr. Benoit would case Ms. Colistro.

The rehiring of Mr. Benoit has caused the plaintiff a visible and provable illness.  Prior to January 2007, Ms. Colistro had never suffered from any form of mental health issues and since the announcement of Mr. Benoit’s rehiring, Ms. Colistro has a mental health diagnosis which she seeks regularly medical attention for.

In Shah, the Ontario Court of Appeal upheld the trial judge’s conclusion that constructive dismissal may be found where the employer’s treatment of the employee makes continued employment intolerable.  Citing also Potter, which the Supreme Court ruled past acts must be considered and General Motors, which upheld Shah in a “poisoned workplace” case.

In considering, the court stated that Tbaytel ignored the issues raised by Ms. Colistro, a situation that had been found to have merit in 1996 when Mr. Benoit was terminated from his position.  Ms. Colistro was a 20 year veteran employee at the time of Mr. Benoit’s rehiring and the process revictimized her.  Ms. Colistro has the onus of establishing whether or not on a balance of probabilities that Tbaytel’s conduct made her continued employment intolerable.  The court is satisfied that Ms. Colistro has established Tbaytel’s made her continued employment intolerable and therefore constructively dismissed her on February 6, 2007.

Awards:

The Justice noted that the claimant did not meet all three elements of the tort, should the Justice have erred, they noted the following would have been awarded for Intentional Infliction of Mental Suffering.

Intentional Infliction of Mental Suffering

  1. $100,000 in general damages;
  2. $193, 719 in past economic loss;
  3. $279, 064 for future economic loss;
  4. Decline to award on aggravated damages, due in part that it did not meet the threshold of malice from Hill and Stilwell V. World Kitchen Inc;
  5. Decline to award punitive damages because it did not rise to the level of malicious and oppressive conduct;

The complaint of constructive dismissal was awarded.

Constructive Dismissal

  1. $14,082 for wrongful dismissal
  2. $100,000 in Honda damages