View cases - Stewart McKelvey

- 30 -107 In my view, there is no valid reason why the scope of compensable injuries indefamation situations should not be equally recognized in the context of wrongfuldismissal from employment. The law should be mindful of the acute vulnerability ofterminated employees and ensure their protection by encouraging proper conductand preventing all injurious losses which might flow from acts of bad faith or unfairdealing on dismissal, both tangible and intangible. I note that there may be thosewho would say that this approach imposes an onerous obligation on employers. Iwould respond simply by saying that I fail to see how it can be onerous to treatpeople fairly, reasonably, and decently at a time of trauma and despair. In my view,the reasonable person would expect such treatment. So should the law.2011 SKQB 318 (CanLII)[68] These principles were applied by Justice Grace of the Ontario Superior Court ofJustice in Pagliaroli v. Rite-Pak Produce Co., 2010 ONSC 3729, [2010] O.J. No. 3017(QL),in upholding an arbitrator’s award of $25,000.00 for aggravated damages in a constructivedismissal case. Approximately one month after his termination, the employer made a speechat a Christmas party in which he insinuated that the employee had been dismissed forcorruption and dishonesty. After referring to the above passages from Wallace, Justice Gracewrote (at para. 61):61 Those principles apply with full force to conduct that occurs after termination. Inthis case, Mr. Pagliaroli maintained that the usual “hurt feelings” which flow fromdismissal were exacerbated by a later, thinly veiled and wide-ranging attack on hischaracter. Given the circumstances, Mr. Pagliaroli was unable to respond. Thearbitrator agreed the speech went too far. While the absence of medical evidence is aconcern, there was factual support for the arbitrator's conclusion the speech causedmental distress: Francis v. Canadian Imperial Bank of Commerce, [1994] O.J. No.2657 (C.A.). While Mr. DuVernet is correct in saying the arbitrator did not label the“independent actionable wrong”, the arbitrator clearly viewed the speech asdefamatory and to use the words in Wallace “unfair dealing”: Plester v. WawanesaMutual Insurance Co., [2006] O.J. No. 2139 (C.A.). In my view, the arbitrator didnot err in awarding $25,000 on account of aggravated damages.[69] In Chapell v. Canadian Pacific Railway Co., 2010 ABQB 441, 29 Alta. L.R. (5 th ) 380,a 27 year employee was dismissed after the employer became aware that he had submitted