A. INTRODUCTION
The Ontario Court of Appeal recently released its decision
in M.B. v 2014052 Ontario Ltd. (Deluxe Windows of Canada), upholding a Superior Court of Justice decision in which the jury awarded the
plaintiff $468,969.18. The appeal was brought by the defendant, Mickey Weig,
who was found liable for assault and battery, and the damages arising
therefrom, for repeatedly sexually assaulting the plaintiff, who was an
employee under his direct supervision. Though only Weig appealed the verdict,
both the employer, Deluxe Windows of Canada (Deluxe), and Weig were held
jointly and severally liable for the damage award. Deluxe was held vicariously
liable for Weig’s acts. While this case involved employment in the for-profit
business sector, the principles relating to liability for workplace violence
and harassment also apply to not-for-profits and charities.
B. FACTS
The plaintiff, referred to as M.B. to protect her identity,
moved to Canada in June of 2002. She worked for Deluxe as a commissioned
salesperson from 2003 to 2005. During the period of January to October 2004,
Weig sexually assaulted M.B. four times, for which he was criminally convicted
and incarcerated. In her lawsuit, M.B. claimed general and aggravated damages
for psychological conditions arising from the assaults, including feelings of
fear and shame, nightmares, insomnia, trauma, flashbacks, depression and
anxiety. M.B. claimed further damages for loss of income resulting from her
fear of the workplace following the assaults, and from being given less
lucrative sales clients as a punishment for not acceding to Weig’s sexual
demands. However, the claim for loss of income was not left with the jury
because the trial judge determined that the claim was not sufficiently
supported by the evidence. Following an eight-day trial, the jury awarded
damages for assault and battery against Weig and Deluxe, as well as ordering
them to pay M.B.’s legal costs, fixed at $150,000 plus GST, and $24,382.82 in
legal disbursements. The award against Weig and Deluxe was as follows:
· $300,000 in general damages
· $25,000 in aggravated damages
· $45,000 in future health care costs and
· $98,969.18 in prejudgement interest.
C. DECISION OF THE COURT OF APPEAL
The employer, Deluxe, did not appeal the trial decision. The
defendant, Weig, raised several arguments on appeal. However the court
determined only two issues to be central: whether the jury should have been
instructed to assess whether a portion of the damages to M.B. were attributable
to other causes, and whether the jury award for general damages was so
inordinately high as to warrant intervention by the Court of Appeal. M.B. also
cross appealed on the decision of the trial judge to not allow the jury to
consider the issue of loss of income, which was dismissed by the Court of
Appeal.
Weig argued that the trial judge should have instructed
the jury to consider previous traumatic events in M.B.’s life as factors that materially
contributed to her situation. Accordingly, Weig argued that he should not have
been held legally responsible for all the conditions from which she now
suffered. The Court of Appeal determined that the trial judge did err in
not instructing the jury to consider these other events. However, the Court
determined that this error did not lead to a substantial wrong or
miscarriage of justice, because there was no reasonable evidence of either a
pre-existing condition or the contribution of events to M.B.’s condition that
would warrant leaving these questions with the jury. As such, the trial judge’s
error was not so crucial as to warrant either a variation of the jury award or
a new trial.
With regard to the amount of the damage award, Weig argued
that the appropriate range for a general damage award for the sexual assault of
an adult victim is between $75,000 and $125,000. However, the Court of Appeal
found that while the award was outside of the expected range, it would not
interfere because jury awards are given significant deference by the courts,
and the award “is not so plainly unreasonable and unjust as to satisfy the
court that no jury reviewing the evidence as a whole, and acting judicially
could have reached it.”
D. CONCLUSION
This decision is an example of the type and extent of
liability employers may face should they fail to take reasonable steps to
eliminate workplace violence and harassment. The damage award in this case
could have been significantly higher if the plaintiff was able to establish a
claim for lost income. In light of the 2010 amendments to the Ontario Occupational
Health and Safety Act, charities and not-for-profits need to know their duties as employers to
implement and enforce workplace violence and harassment policies. Employers
should see this case as a warning of the significant liability they may face in
cases of workplace violence and harassment.
