THUNDER BAY — After initially winning a judgment of more than $100,000 for constructive dismissal, a former Tbaytel worker has learned she is responsible for the company's and the city's court costs totalling $200,000.
In 2007, the woman, who worked for Tbaytel for nearly two decades, went on medical leave and was diagnosed with PTSD after the company rehired a former supervisor previously terminated for sexually harassing her.
She sued for damages for constructive dismissal and for intentional infliction of mental distress.
In 2017, a Superior Court justice dismissed the latter claim but ruled the woman should be compensated in the amount of $114,000 for constructive dismissal.
In a followup ruling, the same judge determined in 2018 that Tbaytel and the City of Thunder Bay were "the substantially successful parties to the litigation." Accordingly, he ordered the former worker to pay $150,000 in costs to Tbaytel and $50,000 in costs to the city.
Both sides in the suit filed appeals which were heard in January of this year.
The woman sought to overturn the trial judge's rejection of her claim for intentional infliction of mental suffering, and also sought leave to appeal his order for costs.
Tbaytel and the city cross-appealed, arguing that the judge erred in finding the employee had been constructively dismissed, and erred in his damage award as well.
Three justices of the Ontario Court of Appeal have now upheld all the rulings, leaving the outcome of the Superior Court case unchanged.
In confirming the finding of constructive dismissal, they described as "well-founded" the trial judge's conclusion that Tbaytel's position on the rehiring of the woman's former supervisor was "demeaning, dismissive and 're-victimized' the plaintiff."
However, they agreed with his finding that the evidence did not support the full test for the deliberate imposition of mental suffering.
The evidence did not prove, the panel said, "that Tbaytel subjectively knew that the serious psychological injury which ensued was substantially certain to occur" from returning the man to the workplace.
In upholding the award to the defending parties for costs, the Court of Appeal noted that the trial judge decided that "given the [amount of] damages sought at trial by the appellant and the result achieved after trial, it was obvious that Tbaytel and the City were the substantially successful parties to the litigation, and were therefore entitled to an award of costs."
Had the employee won the argument for intentional infliction of mental distress, she could have received more than $500,000 in general damages and for past and future economic loss.
Among the factors, the trial judge took into account in deciding on costs were the financial terms of Tbaytel and the city's offers to settle the case in 2015 and 2016.
