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Former Tbaytel worker wins suit for constructive dismissal

Company's actions called grossly unfair and insensitive
Thunder Bay Courthouse (Matt Vis,

THUNDER BAY -- A court has ordered Tbaytel and the City of Thunder Bay to pay a former employee about $114,000 for constructive dismissal.

But Linda Colistro's lawyer expects to appeal the court's rejection of her additional claim for much larger damages for intentional infliction of mental distress.

Colistro sued Tbaytel and the City of Thunder Bay after the phone company rehired her ex-supervisor in 2007, eleven years following his termination.

According to Superior Court Justice John Fregeau's reasons for judgment in the case, released this month, one of the reasons for the termination was the sexual harassment of Colistro in 1996.

When the individual returned as part of a structural re-organization at Tbaytel, Colistro—an administrative assistant—became upset, saying it would create an unhealthy and unsafe working environment.

According to the court document, management offered to isolate her "to the greatest extent possible" from him, but would not guarantee the two would have no contact whatsoever in the workplace.

Colistro, who had worked at Tbaytel for nearly 20 years, went on medical leave and was diagnosed with depression and Post Traumatic Stress Disorder. She never returned to Tbaytel.

In his ruling, Justice Fregeau described Colistro as a valued and respected employee of the company with an unblemished record. 

He said Tbaytel had hoped to put her concerns about the hiring to rest "by shuffling her to another building. This decision minimized and invalidated the sexual harassment complaints" she had made previously.

The judge characterized the treatment of Colistro as "grossly unfair, unduly insensitive and in blatant disregard of her interests."

He said that based on credible and reliable medical evidence, he concluded that Tbaytel's hiring of her former supervisor resulted in Colistro suffering a visible and provable illness.

Justice Fregeau awarded her $114,000 in damages for constructive dismissal, but dismissed the claim for compensation for the intentional infliction of mental suffering.  

While saying that "a reasonable person aware of all the facts could find the conduct of Tbaytel to be flagrant and outrageous," the judge said the evidence did not establish that the conduct was calculated to produce harm or that the company knew "it was substantially certain" that its conduct would precipitate PTSD and depression.

He also declined to award any punitive damages, saying Tbaytel's behaviour did not, in his opinion, rise to the level of malicious and oppressive conduct. 

Justice Fregeau did, however, determine that "should liability ultimately be found" for intentional infliction of mental distress, Colistro should be entitled to an additional $573,000 in general damages and for past and future economic loss.

Colistro's lawyer, Michael Cupello, told Tbnewswatch he is satisfied with the court's factual findings and its ruling on constructive dismissal, but is likely to appeal the ruling regarding intentional infliction of mental suffering. 

So far there is no word on whether the city plans its own appeal, but a spokesperson for Tbaytel provided Tbnewswatch with a brief emailed statement saying the company believes the court "took a measured approach" to reaching a decision. 

The supervisor whose hiring instigated the lawsuit has not been employed by Tbaytel for several years.

Some senior executives who were working there at the time have also left the company.





Gary Rinne

About the Author: Gary Rinne

Born and raised in Thunder Bay, Gary started part-time at Tbnewswatch in 2016 after retiring from the CBC
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