The Court held that the second element requires the plaintiff to prove that “the defendant must have intended to produce the kind of harm that occurred or have known that it was almost certain to occur” [Boucher v Wal-Mart Canada Corp.].  It is insufficient to show only that the defendant ought to have known that harm would occur. In some cases, however -- particularly, cases alleging negligent (rather than intentional) infliction of emotional distress, courts will typically require some sort of physical injury as well. In addition, she found the defendants liable for intentional infliction of mental suffering. The Court noted that the test for intentional infliction of mental distress was for the Plaintiff to establish conduct that is: Flagrant and outrageous; Calculated to produce harm, and; Resulting in a visible and provable illness. Mental Anguish and Emotional Distress. results in a visible and provable illness. If you require legal advice and representation with respect to an employment matter, please contact us for an initial consultation. Intentional infliction of emotional distress generally involves some kind of conduct that is so terrible that it causes severe emotional trauma to the victim. ... a person may act with intentional infliction of emotional distress (IIED). Over the years, our team of exceptional litigators has seen it all and has successfully fought for our clients’ rights. Merrifield v. ... Canada Insurance Claim In the same decision, however, the court upheld the award of $100,000 in damages for intentional infliction of mental suffering against the manager, and the award of $200,000 in aggravated damages against Wal-Mart. Baycrest Centre for Geriatric Care, a wrongful dismissal case that awarded damages, not only for 12 months’ pay in lieu of notice, but for aggravated damages in the amount of $15,000 for the tort of “intentional infliction of mental suffering”. Ontario Superior Court At trial, Ayotte was found personally liable for the torts of battery, intentional infliction of mental suffering, and negligent infliction of mental suffering. Following the Supreme Court of Canada’s decision in Potter, the Court of Appeal clarified that constructive dismissal may arise in two ways: Although the Supreme Court of Canada explained in Potter that the second approach requires “the cumulative effect of past acts” to be considered, the Ontario Court of Appeal held that a single act may constitute constructive dismissal under the second approach.  The Court of Appeal explained that its holding is in line with the emphasis in Potter on the flexible approach of the second approach. At ¶54 of her judgment in Dechant v Law Society, Justice Horner wrote of the "elements of the tort of intentional infliction of nervous shock" as follows: "In order to establish the tort, a plaintiff must establish that there was: (i) a deliberate, wilful misstatement of fact, … All rights reserved. The plaintiff sued the Crown and certain individual RCMP members. The ONCA clarified the subjective element but stating that it is not necessary to prove that the defendant intended to produce the specific psychiatric illness which resulted or to have known it was substantially certain to follow. Yona Gal, J.D., LL.MMarch 28, 2019Appeals, Civil Litigation, Employment & Wrongful Dismissal0 Comments. The tort of intentional infliction of mental suffering ("IIMS") is not awarded often, and requires the Plaintiff to meet a very high threshold. The tort of intentional infliction of mental distress has always been difficult to prove and, in a decision recently released, the Ontario Superior Court refused to find the … The judge in the Merrifield case observed that it is similar to the tort of harassment, but with a couple of distinctions. Emotional distress happens when a person struggles with mental anguish or pain and suffering after a traumatic event. Perhaps, the Court was suggesting that the tort is applicable to deal with non workplace harassment, since this is already addressed through existing torts (intentional infliction of mental suffering) and employment legislation, including minimum employment standards, workplace health and safety legislation, and human rights legislation. Find out if you can sue for emotional distress in Florida and what a personal injury lawyer can do for you. LL.B., LL.M, Q.Arb Senior Counsel Commercial Litgation, C.I.P. 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