STACEY R BALL
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The courts may award aggravated damages in the context of wrongful dismissals.
Aggravated damages are compensatory in nature, meaning they are meant to compensate a plaintiff for a loss they have suffered. This is in contrast to punitive damages (Please see article titled “Punitive Damages”) which are awarded to punish a defendant for harsh and reprehensible behaviour. Aggravated damages need to be grounded in proof of actual damages suffered, as a result of unfair or bad faith conduct in the manner of dismissal. These damages are often interchanged with “moral” damages, after a recent Supreme Court of Canada decision. Aggravated damages can be awarded to compensate for injured dignity or pride, or awarded for mental distress. The courts are more willing to award aggravated damages for mental distress when there are physical manifestations of the distress. Further, supporting medical documentation is very useful in establishing mental distress. Aggravated damages are typically more modest than punitive damages, and they are more directly tied to the level and evidence of injury that the plaintiff suffered. Employers have a duty to act in good faith and fairly when it comes to dismissing employees. If an employee is dismissed in an abusive or reckless manner, they may have a claim for aggravated damages. Other factors have played a role in calculating aggravated damages, such as whether the employee was induced away from a secure place of employment before being wrongfully terminated.
Aggravated or moral damages are the exception, and not the rule. It would be jarring for most people to be terminated without cause, but the typical feelings of disappointment, shock or anger do not usually qualify for aggravated damages. See Wallace v United Grain Growers Ltd. (1997), 152 D.L.R. (4th) 1 (S.C.C.). If an individual has been discriminated against contrary to the Ontario Human Rights Code, they can potentially recover aggravated damages as well as damages under the Code for the discriminatory behaviour. Damages under the Code can be thought of as compensation for the loss of the right to be free from discrimination. The best way for employers to avoid these problems is to consult with a legal expert and develop best practices for terminating an employee. Adhering to these practices would help maintain the dignity and respect of the terminated employee and foster a positive work environment. Unfortunately, many employers act improperly during terminations and employees find themselves mistreated with respect to a dismissal. Please note that the above information does not constitute legal advice. It is general information about the law. If you require legal advice with an employment issue, please contact the experts at Ball Professional Corporation.
Canadian Employment Law
Mr. Ball is author of the authoritative and definitive text Canadian Employment Law - published by Canada Law Book (a division of Thomson Reuters). The text is used and cited by lawyers, law schools and judges across Canada.
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