Judgments

[1994] 3 .F.C. 323

T-648-89

Alice Clark (Plaintiff)

v.

Her Majesty the Queen in Right of Canada (Defendant)

Indexed as: Clark v. Canada (T.D.)

Trial Division, Dubé J.—Edmonton, September 7, 8, 9, 10, 1993; Ottawa, April 26, 1994.

RCMP — Action claiming damages by former RCMP member — Alleging wrongful dismissal, harassment, negligence, intentional infliction of nervous shock — Female officer harassed by male constables, undergoing mental crisis — RCMP superiors failing to come to assistance — Harassment major cause of plaintiff’s resignation — RCMP members not to be dismissed at pleasure under RCMPA, s. 13(2) — Plaintiff not governed by collective agreement — Ambiguous status of RCMP members bar to action for wrongful dismissal in FCTD — Plaintiff awarded damages for supervisor’s negligence.

Crown — Torts — Negligence — Vicarious liability of Crown under Crown Liability Act — Claim of woman who had been RCMP member based on intentional infliction of nervous shock, negligence — Case law, authors reviewed — Conduct toward plaintiff over four-year period extreme, causing actual harm in form of illness — Plaintiff’s supervisors acting in course of employment — Condoned, participated in harassment of plaintiff — Duty of care owed to plaintiff, breached consistently — Negligence engaging Crown’s vicarious liability — No issue of remoteness or foreseeability — Supervisor’s negligence direct cause of damage suffered by plaintiff.

Damages — Limiting principles — Mitigation — Action claiming damages for intentional infliction of nervous shock — Failure to seek psychological or psychiatric help not failure to mitigate analogous to refusal of professional help, but factor to be weighed.

This was an action for damages for wrongful dismissal launched by a former RCMP member who alleged that sexual and other harassment on the part of some of her male colleagues and supervisors constituted a breach of the terms of her employment, negligence and intentional infliction of nervous shock. The plaintiff joined the RCMP in July 1980. Before long, she was subjected to sarcastic and sexist remarks by male colleagues and such comments continued to be made despite her objections. The sergeant said that she was not a real woman. Other members called her a “butch” and watched pornographic movies in the work area which she occupied. She stated that the work environment caused her unhappiness and began to affect her health. She completed her five-year term of engagement in July 1985 and was re-engaged for “continuous service”. A year later, she requested a transfer, asthma being the reason given. In October 1986, she filed a complaint of harassment against two of her supervisors after numerous negative comments and reprimands had been placed in her file. When her condition worsened to the point where she was undergoing a mental crisis, plaintiff resigned from the RCMP in July 1987, again giving asthma as the reason. The evidence was that plaintiff had, in fact, been harassed by male constables and that her superiors failed to come to her assistance. The harassment was the major cause for her resignation. This action raised three main issues: 1) liability arising from the employment relationship, 2) liability in tort under the Crown Liability Act and 3) damages.

Held, the plaintiff should have judgment.

1) Under subsection 13(1) of the Royal Canadian Mounted Police Act, officers of the Force hold office during the pleasure of the Governor in Council. However, the weight of authority from the Federal Court of Appeal is that under subsection 13(2) of the Act, provisions of the Regulations setting out the grounds of discharge and the Commissioner’s Standing Orders governing procedures related thereto, members of the RCMP may not be dismissed at pleasure. The question arose whether the plaintiff could maintain an action in this Court on grounds associated traditionally and primarily with the master-servant employment relationship, and based on the contract of employment. Principles of contract have been found relevant where, for example, a collective agreement provision governing the dismissal of public servants conflicts with a statutory power of dismissal at pleasure. The plaintiff was not governed by a collective agreement, nor party to a contract of employment. The admittedly ambiguous status of RCMP members, such as the plaintiff, does not enable her to maintain a cause of action for wrongful dismissal in this Court, despite the fact that she may not be dismissed at pleasure. However, that conclusion has not the effect of precluding any recourse or monetary compensation for a member of the RCMP alleging similar circumstances, in view of the remedial jurisdiction of the Canadian Human Rights Tribunal.

2) In order to engage the vicarious liability of the Crown under subsection 3(1) of the Crown Liability Act, the plaintiff had to establish, first, that a tort has been committed by a servant of the Crown, and second, that the tort was committed in the course of the servant’s employment. The unique set of circumstances herein, involving several of the plaintiff’s fellow members and superiors, as opposed to a single individual, and a course of conduct over a four-year period, supported the plaintiff’s claim for intentional infliction of nervous shock. The conduct directed toward her was extreme and calculated “to produce some effect of the kind which was produced”. Those acting in a supervisory capacity or in a position of authority with respect to the plaintiff were acting in the course of their employment. The impugned conduct occurred strictly within the confines of the working relationship and was occasioned by it. The plaintiff could also engage the Crown’s vicarious liability on the basis of negligence, by proving that she was owed a duty of care and that such duty had not been fulfilled. The question whether a duty exists in a given situation is one of law. The standard of care required is that of the ordinary man or woman. The plaintiff’s immediate supervisor owed her a duty of care and breached that duty consistently. Over a lengthy period, he deliberately refused to exercise his authority to put an end to the conduct of harassment of which he was well aware and which he in fact participated in on occasion, thus condoning that behaviour. There was no issue of remoteness or foreseeability: his negligence was the direct cause of the damage suffered by the plaintiff.

3) Special damages are intended to put the victim in the same financial position she would have been in had the accident not happened; this head of damages should reflect “pecuniary loss”. Based on the figure of $100,500 relating to lost earnings up to the completion of the plaintiff’s ten years’ service with the RCMP as the most appropriate basis on which to calculate an award, an amount of $88,000 is a suitable award for lost earnings from September 1987 to September 1990. As to general damages, Canadian courts have adopted a functional approach to the assessment of damages for non-pecuniary loss. This approach is to assess the amount which will provide a reasonable measure of consolation to the victim for her particular mental condition. The fact that the plaintiff did not actively seek out psychological or psychiatric help was not a failure to mitigate analogous to actual refusal of offers of professional help, but was still a factor to be weighed. An award of $5,000 would provide the plaintiff “a reasonable measure of consolation” for her injured dignity arising from defendant’s tortious conduct.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 15.

Canadian Human Rights Act, S.C. 1976-77, c. 33, s. 41(2).

Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 53(2).

Crown Liability Act, R.S.C. 1970, c. C-38, ss. 3, 4.

Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50 (as am. by S.C. 1990, c. 8, s. 21), ss. 9, 10.

Government Employees Compensation Act, R.S.C. 1970, c. G-8.

Government Employees Compensation Act, R.S.C., 1985, c. G-5.

Interpretation Act, R.S.C. 1970, c. I-23, s. 23(1).

Interpretation Act, R.S.C., 1985, c. I-21.

Judgment Interest Act, S.A. 1984, c. J-0.5.

Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9, ss. 13, 21(1),(2).

Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10.

Royal Canadian Mounted Police Regulations, C.R.C., c. 1391, ss. 45, 46, 47, 48, 49, 64, 74.

CASES JUDICIALLY CONSIDERED

APPLIED:

Gingras v. Canada, [1994] 2 F.C. 734; (1994), 165 N.R. 101 (C.A.); Boothman v. Canada, [1993] 3 F.C. 381 (T.D.); Wilkinson v. Downton, [1897] 2 Q.B. 57; Rahemtulla v. Vanfed Credit Union, [1984] 3 W.W.R. 296; (1984), 51 B.C.L.R. 200; 4 C.C.E.L. 170; 29 C.C.L.T. 136 (B.C.S.C.); Donoghue v. Stevenson, [1932] A.C. 562 (H.L.); Anns v. Merton London Borough Council, [1977] 2 W.L.R. 1024 (H.L.); Smyth v. Szep, [1992] 2 W.W.R. 673.

DISTINGUISHED:

Kedward v. The Queen, [1973] F.C. 1142 (T.D.); affd [1976] 1 F.C. 57; 11 N.R. 586 (C.A.); Huxter v. Canada, [1985] F.C.J. No. 700 (QL); Laroche and Beirsdorfer, Re (1982), 131 D.L.R. (3d) 152; 39 N.R. 407 (F.C.A.); Brown v. Waterloo Regional Board of Commissioners of Police (1982), 37 O.R. (2d) 277 (H.C.); revd in part (1983), 43 O.R. (2d) 113 (C.A.); Queen, The and Archer v. White, [1956] S.C.R. 154; (1955), 1 D.L.R. (2d) 305; 114 C.C.C. 77; Dawkins v. Lord Paulet (1869), L.R.5 Q.B. 94.

REFERRED TO:

McCleery v. The Queen, [1974] 2 F.C. 339; (1974), 48 D.L.R. (3d) 129; 5 N.R. 251 (C.A.); Gallant v. The Queen in right of Canada (1978), 91 D.L.R. (3d) 695 (F.C.T.D.); Phillips v. The Queen, [1977] 1 F.C. 756 (T.D.); Lutes v. Commissioner of the Royal Canadian Mounted Police, [1985] 2 F.C. 326; (1985), 61 N.R. 1 (C.A.); Poirier v. Canada (Royal Canadian Mounted Police (RCMP), Commissioner), [1983] F.C.J. No. 605 (QL); Reilly v. The King, [1934] 1 D.L.R. 434; [1934] 1 W.W.R. 298; [1934] A.C. 176 (P.C.); affg [1932] S.C.R. 597; Crossman v. City of Peterborough and Peterborough Utilities Comm., [1966] 2 O.R. 712 (C.A.); Desjardins v. Commr. of Royal Cdn. Mounted Police (1986), 18 Admin. L.R. 314; 3 F.T.R. 52 (F.C.T.D.); Marshment v. Borgstrom, [1942] S.C.R. 374; [1942] 4 D.L.R. 1; Beaulieu v. Sutherland (1986), 35 C.C.L.T. 237 (B.C.S.C.); Danch v. Nadon, [1978] 2 F.C. 484; (1977), 18 N.R. 568 (C.A.); Adams v. Canada (Royal Canadian Mounted Police, Commissioner—RCMP), [1993] F.C.J. No. 1321 (QL); Horn v. Canada et al. (1994), 73 F.T.R. 301 (F.C.T.D.); Langille et al. v. Canada (1991), 44 F.T.R. 60 (F.C.T.D.); Canada v. Tremblay (1989), 28 F.T.R. 25 (F.C.T.D.); Canada v. Dupont (1986), 6 F.T.R. 197 (F.C.T.D.); Canada v. Lavoie (1986), 5 F.T.R. 223 (F.C.T.D.); Canada v. Brogan, [1985] F.C.J. No. 1022 (QL); Bieletski v. Obadiak (1921), 61 D.L.R. 494; [1921] 3 W.W.R. 229 (Sask. K.B.); affd (1922), 65 D.L.R. 627; [1922] 2 W.W.R. 238 (Sask. C.A.); Purdy v. Woznesensky, [1937] 2 W.W.R. 116 (Sask. C.A.); Abramzik et al. v. Brenner et al. (1967), 65 D.L.R. (2d) 651; 62 W.W.R. 332 (Sask. C.A.); Timmermans v. Buelow (1984), 38 C.C.L.T. 136 (Ont. H.C.); Frame v. Smith, [1987] 2 S.C.R. 99; (1987), 42 D.L.R. (4th) 81; 42 C.C.L.T. 1; [1988] 1 C.N.L.R. 152; 78 N.R. 40; 23 O.A.C. 84; 9 R.F.L. (3d) 225; Bettel et al. v. Yim (1978), 20 O.R. (2d) 617; 88 D.L.R. (3d) 543; 5 C.C.L.T. 66 (Co. Ct.); Allan et al. v. New Mount Sinai Hospital et al. (1980), 28 O.R. (2d) 356; 109 D.L.R. (3d) 634; 11 C.C.L.T. 299; 4 L. Med. Q. 146 (H.C.); revd (1981), 33 O.R. (2d) 603; 125 D.L.R. (3d) 276; 19 C.C.L.T. 76 (C.A.); Crown Diamond Paint Co. Ltd. v. R., [1980] 2 F.C. 794 (T.D.); Kamloops (City of) v. Nielsen et al., [1984] 2 S.C.R. 2; (1984), 10 D.L.R. (4th) 641; [1984] 5 W.W.R. 1; 29 C.C.L.T. 97; Canadian National Railway Co. v. Norsk Pacific Steamship Co., [1992] 1 S.C.R. 1021; (1992), 91 D.L.R. (4th) 289.

AUTHORS CITED

Cooper-Stephenson, Kenneth D. and Iwan B. Saunders. Personal Injury Damages in Canada. Toronto: Carswell, 1981.

Fleming, John G. The Law of Torts, 8th ed. Sydney: Law Book Company, 1992.

Fridman, G. H. L. Fridman on Torts. London: Waterlow Publishers, 1990.

Fridman. G. H. L. The Law of Torts in Canada, vol. 1. Toronto: Carswell, 1989.

Hogg, Peter W. Liability of the Crown, 2nd ed. Toronto: Carswell, 1989.

Irvine, John. Annot. (1984), 38 C.C.L.T. 136.

Linden, Allen M. Canadian Tort Law, 5th ed. Markham, Ont.: Butterworths, 1993.

Posser, William L. “Insult and Outrage” (1956), 44 Cal. L.Rev. 40.

ACTION claiming damages for negligence, intentional infliction of nervous shock, wrongful dismissal of RCMP member who alleged that a lengthy period of sexual and other harassment by male colleagues and supervisors had caused her to resign. Action allowed except as to wrongful dismissal.

COUNSEL:

Lorne E. Goddard for plaintiff.

Bruce Logan for defendant.

SOLICITORS:

Chapman Riebeek, Red Deer, Alberta, plaintiff.

Deputy Attorney General of Canada for defendant.

The following are the reasons for judgment rendered in English by

Dubé J.: This is an action in damages against the Crown launched by a former member of the Royal Canadian Mounted Police (RCMP, or the Force), who alleges that sexual and other harassment on the part of some of her male colleagues and supervisors caused her severe stress and depression and drove her to resign from the Force in July 1987. The plaintiff claims she was wrongfully dismissed, and that the actions of her colleagues and supervisors constituted a breach of the terms of her employment, discrimination under section 15 of the Canadian Charter of Rights and Freedoms[1] (the Charter), negligence and intentional infliction of nervous shock.

The four-day hearing into this matter at Edmonton, Alberta, in September 1993 (the period requested by the parties and granted by the Court) ended with no time remaining for oral arguments. Two rounds of written submissions were completed March 15, 1994.

1.         The evidence

On July 16, 1980, the plaintiff, then Alice Abernathy, became a member of the RCMP pursuant to the provisions of the Royal Canadian Mounted Police Act (the Act).[2] In September 1981, after completing basic and field training, she was assigned to the Red Deer City detachment (Red Deer City). She worked on a general duty shift until August 1982, when she was transferred to the traffic section.[3] Members assigned to the traffic section worked out of the same office, alongside but separately from the general duty shifts.

The plaintiff testified that she experienced problems in the traffic section under Corporal Warren McDonald’s supervision, and that he showed favouritism to male members, and was unjustly critical of her performance. She also began to be subjected to unwelcome comments by male members on the general duty shift alongside which she frequently worked. She was told by the sergeant supervising this shift, in the presence of other members, that she wasn’t a real woman until she had a child, that she should go home and start a family. Other members referred to her as a “butch” and a “metermaid”. Such comments continued despite the plaintiff’s objections.

On one occasion she was grabbed and kissed by a member who told her to call him when her husband was away if she wanted a real man.[4] One night shift, a Corporal T. C. Steeves began viewing a pornographic movie in the same work area occupied by the plaintiff. She complained, and was told to “hit the road” if she didn’t like it. The members on general duty told her bluntly they did not want her assistance on complaints called in, to mind her own business and stick to traffic work. The plaintiff found that the members responsible for the above actions were hostile toward her and other female members. She felt that she could not rely on them for assistance when needed and that she was not welcome on their shift.

In March 1984 the plaintiff was transferred back to general duties on Corporal Bruce Bishop’s shift, under Sergeant Robert Williams’ supervision. In September 1984, Corporal Fred Mazur replaced Cpl. Bishop as the plaintiff’s supervisor. She remained on his shift until February 1987 and felt ostracized throughout that period. Harassing incidents continued. On one occasion, she arrived at her work station to find a pair of plastic breasts taped to her work station with her regimental number and “RCMP GIRL” written on them. Several male members present were laughing. The plaintiff complained to Cpl. Mazur who took no steps to discipline the constables. Cpl. Mazur testified that he could not say whether the breasts might be called offensive because he had not seen them.

On another occasion, members of the Force were displaying the centrefold of a Playboy magazine. When she objected to Cpl. Mazur, he told her they would appreciate it for her. There were also other incidents of pornographic movies being shown during night shifts. The plaintiff testified that sometimes Cpl. Mazur attended. A further gross experience occurred when a suit of soft body-armor she had ordered was placed in her basket in an open area of the detachment with “Your playtex cross your heart soft-armor bra” written on the packaging.

Many of these allegations were confirmed by the evidence of Linda Ley, a secretary at the detachment at the time, who said the plaintiff would come into her office crying and appeared to be depressed. According to Ms. Ley, some members were “cruel” to the plaintiff, and “there was almost an attempt made to isolate her, to not let her be part of the office, to exclude her.” None of the male constables named by the plaintiff at the trial was called as a witness by the defendant. The plaintiff’s superiors who were called to testify did not specifically deny any of these offensive incidents. Some of them criticized the plaintiff’s own performance.

The plaintiff stated that the work environment caused her unhappiness and began to affect her health. In particular, she noticed a worsening of an exertion-related asthma condition which had developed in the Red Deer climate and for which she had been treated with medication since 1982 by Dr. R. C. Cooper. She no longer looked forward to going to work. She felt “like a piece of dirt.”

The plaintiff completed her five-year term of engagement in July 1985. She testified that at that point the possibilities were threefold: she could resign, re-enlist, or the RCMP could decide not to re-engage her. The plaintiff was re-engaged for “continuous service.” The plaintiff stated she did not discuss her problems with Inspector D. C. Nielsen, the officer in charge of the detachment with whom she signed the document of re-engagement, as it was known he would be replaced by Inspector Lawrence Pearson in October 1985.

However, the plaintiff had decided to take steps to resolve the situation, and met with the four other female members posted to Red Deer City. All but one agreed to reveal their concerns, without naming names. In August 1985, the plaintiff did disclose her concerns in a private interview with Insp. Pearson, during the course of an annual audit of the detachment and prior to his taking over as officer in charge at Red Deer City.

Insp. Pearson testified that the plaintiff complained of unequal treatment meted out to female members, but could not recall her mentioning specific incidents of sexual harassment. He thought she had probably organized the female members to complain, and that she had “the most at stake,” as the other female members had no problems. He was sufficiently concerned when he did take over the detachment, however, that he included the subject on a list of expectations for improvement he communicated to all shifts. Yet he stated that he undertook no follow-up to ensure compliance, as “I never saw any unequal treatment.”

The plaintiff said the situation did not improve with Insp. Pearson’s intervention, and that, soon after, during a visit to the office, Insp. Pearson put his hand on her shoulder and asked her “How’s it going, deary?” in front of all members present. Insp. Pearson denied using the term “deary,” but said he had been using the term “dear” for forty years without anyone ever having complained. He did not consider using that term to a female RCMP member offensive. The plaintiff felt the episode was derogatory and condescending, and concluded Insp. Pearson would not resolve the situation. She determined to do her work, keep out of trouble and hope for a transfer.

From 1985 to 1986, the work environment affected the plaintiff’s performance. She became tentative, hesitant to handle complaints and investigations, and even found it difficult just to go to the office. At that stage, the plaintiff sensed there was no point in making a formal grievance as she would obtain no support from her superiors.

In addition, in June 1986 her first annual performance evaluation after the meeting with Insp. Pearson went down. Cpl. Mazur wrote that the plaintiff was a poor investigator; his concerns were concurred in by Sgt. Williams. However, in February 1985, the plaintiff had attended an investigator course run by experienced criminal investigators and was assessed as having better than average ability.

Cpl. Mazur, endorsed by Sgt. Williams, strongly recommended that the plaintiff be transferred to traffic or administration, where “she could do a good job.” Insp. Pearson opposed the plaintiff’s transfer, although Cpl. Mazur’s recommendation would normally have been an important factor, because he “wasn’t about to transfer a member with poor performance” to another detachment. If he had recommended the plaintiff’s transfer to traffic section, it would have gone through, whereas without his recommendation, the chances of transfer were minimal.

On August 29, 1986, the plaintiff herself requested a transfer, citing asthma as the motivating factor, and met with Sgt. Williams at his request that same day. According to the plaintiff, he advised her that she could either quit, accept a medical discharge, or that he would see her fired by the end of the year. When asked how she remembered Sgt. Williams’ options so clearly, the plaintiff stated that the final option he had presented shocked her so much that “it just burned in” her memory.

Sgt. Williams testified that he never uttered such threats but merely mentioned that the RCMP was not happy with her performance and that it was time for her to move on. It is significant that Sgt. Williams testified that he had kept notes of the meeting, but did not know where they were or if they had been destroyed.

At that time, many written comments and reprimands were being placed in her file. On her second working day following the meeting with Sgt. Williams, Cpl. Mazur issued three negative 1004s (unfavourable comments from her superiors as to her performance). In the ensuing period, she was inundated with negative 1004s.

Both the plaintiff and her husband testified to a deterioration in her condition from August 29, 1986. The latter stated that in the ensuing period he would arrive home from night shift to find the plaintiff had been sitting up in the dark all night crying. The plaintiff testified that her sleeping and eating were affected, she began to withdraw and couldn’t stop crying.

On October 15, 1986, the plaintiff filed a complaint of harassment against Sgt. Williams and Cpl. Mazur relating to the August 29 meeting, unfair treatment in the detachment, and the 1004s. She met with Superintendent Phil Helfrich to discuss the situation. Supt. Helfrich testified that the plaintiff had been distraught, and that it was his opinion “that she had to take this type of action,” and that “it wasn’t an easy thing for her to do.” A transfer was discussed at that meeting, but none ensued.

The plaintiff’s condition worsened. Dr. Cooper testified that when he saw her in October 1986, she was depressed and weepy and having difficulty making decisions. Stress management techniques suggested by Dr. R. J. Huddleston, an outside psychologist to whom she had been referred by RCMP psychologist Yvon Bouchard, were only intermittently helpful.

In late February 1987 the plaintiff felt unable to return to the detachment. Dr. Cooper recommended that she be granted two weeks’ sick leave. After examining the plaintiff on February 24, 1987, Dr. David Shih, the divisional Health Services Officer, agreed. According to his report the plaintiff was

… suffering from a stress-related illness causing excessive fear and depression whenever she returns to her worksite? … [T]he continuation of her in this particular workplace would continue to cause stress-related symptoms and affect her by decreasing her ability to concentrate and increasing her emotional outbursts.

He concluded that “in the present situation the member is undergoing a mental crisis.”

As a result, on February 26, 1987 the plaintiff was posted temporarily to the Innisfail Freeway Patrol, where she performed “most satisfactorily.” On April 22, 1987, she was transferred to the Beaverlodge Detachment. There, too, her supervisors found her work satisfactory in all respects. She was not subjected to any harassment at these two posts.

In May 1987, the plaintiff learned she was under investigation to determine whether criminal assault charges would be laid for incidents with prisoners occurring in 1982, 1983 and August 1986. Her uncontradicted testimony was that each one of these had been known to her superiors at the time of its occurrence. For example, the incident of August 1986 had been witnessed by other members, including Sgt. Williams, who stated that in his opinion as an experienced criminal investigator, the incident had not warranted the laying of criminal charges.

The plaintiff’s husband testified that her condition, which had improved following her transfer away from Red Deer City, deteriorated markedly with news of the criminal investigation. The plaintiff stated that the investigation, coming at a time when she was doing well at Beaverlodge, away from the discrimination and stress of Red Deer, pushed her to the limit and left her no alternative but to resign. She felt the RCMP would “keep hounding after me and hounding after me until I finally leave.” In July 1987 she resigned from the RCMP, giving asthma as the reason. When asked why she had done so, she stated “I just wanted to go. I didn’t want to go into details any more. I just wanted some peace.”

The plaintiff believed that if she quit, the criminal investigation would be dropped. However, in November 1987, she was charged with assault in relation to the 1982 and 1986 incidents. Again her condition deteriorated. In September, 1988 the plaintiff underwent a jury trial and was found not guilty on both counts. None of the plaintiff’s superiors testifying seems to know who laid these charges against her. Chief Superintendent R. K. Leatherdale speculated that the member named to conduct the internal criminal investigation was responsible.

My assessment of the evidence is that the plaintiff was in fact harassed by male constables and that her RCMP superiors failed to come to her assistance. I also find that the harassment was the major cause for her resignation. She did suffer from asthma and did indicate the condition was the reason for her transfer request. She also informed some people that she had resigned because of her sickness, but the real cause for her resignation was stress, depression and anxiety caused by harassment on the part of male members of the RCMP and failure to intervene by her superiors. I found her to be a credible witness.

Her own physician, Dr. Cooper, testified that her asthma could be aggravated by stress and that she was suffering from depression. He followed her from 1982 to 1987 and saw her situation worsen. This was confirmed by the report of the divisional Health Services Officer, Dr. Shih, who described her condition in February 1987 as a “mental crisis.”

2.         The relief sought

The plaintiff claims to be entitled to damages for wrongful dismissal without notice or just cause, and identifies the damages as “her loss of salary from September 1987 until (her reinlistment [sic] date).” Her prayer for relief reads:

WHEREFORE THE PLAINTIFF CLAIMS:

(a) General damages and negligence in the amount of $250,000.00;

(b) General damages for breach of contract of employment in the amount of $250,000.00;

(c) General damages for pain and suffering in the amount of $100,000.00;

(d) For violation of her rights under the Charter of Rights—$250,000.00;

(e) Special damages in an amount to be proven at the trial;

(f) Costs;

(g) Interest;

I propose to deal with the plaintiff’s claims in the following order: liability arising from the employment relationship, liability in tort under the Crown Liability Act[5] (CLA), discrimination under the Charter, and damages.

3.         The employment relationship per se

a.         The parties’ submissions

Counsel for the plaintiff submits that implied terms of her employment by the RCMP included fair treatment, and the honouring of procedural policy in respect of termination of employment: the plaintiff should have been served with a notice of shortcomings, a hearing should have been held and a decision made. Instead the RCMP circumvented existing policies, choosing to harass her and drive her from the force “to save themselves the necessity of attempting to formally have her discharged … and having to deal with the allegations of sexual harassment.”

Because subsection 13(1) of the Act provides explicitly that officers hold office during pleasure, it is arguable that the tenure of regular members, governed by the distinct terms of subsection 13(2), is not at pleasure but is a contract of employment. Such a contract need not be in writing in order for the Court to give it effect. The terms of that contract are as set out in the Act, the Royal Canadian Mounted Police Regulations[6] (the Regulations), and the Commissioner’s Standing Orders[7] (CSOs): McCleery v. The Queen.[8] The defendant’s conduct constituted a fundamental breach of the plaintiff’s contract of employment.

On the other hand, counsel for the defendant argues that the plaintiff had access to a grievance process and did not use it: she therefore has no cause of action in this Court. Further, subsection 23(1) of the Interpretation Act[9] provides that every public servant is deemed to hold office during pleasure unless it is otherwise expressed in the relevant statute. The plaintiff was appointed under the Act, thereby becoming a servant of Her Majesty. Her terms of service were established by and subject to the Act, which sets out a complete code for recruitment, administration and discipline of the RCMP. The plaintiff was therefore not employed under a contract of employment. It is suggested this conclusion is supported, by analogy, by this Court’s decisions holding that neither members of the armed forces nor members of the public service disposed of a legal remedy for wrongful dismissal.[10] Counsel also cites McCleery,[11] in which the Federal Court of Appeal rejected the respondent’s argument that the engagement of a member of the RCMP was a contract with the Commissioner.

b.         Analysis and findings

Section 13 of the Act reads:

13. (1) Officers of the force hold office during the pleasure of the Governor in Council.

(2) Unless appointed for temporary duty, every member other than an officer shall upon appointment sign articles of engagement for a term of service not exceeding five years, but any such member may be dismissed or discharged by the Commissioner at any time before the expiration of his term of engagement.

The employment context of RCMP members has been considered in a number of decisions, the majority of which have involved applications for judicial review of administrative decisions or procedures relating to discharge, discipline or transfer.

In Kedward v. The Queen,[12] which does deal directly with an action for wrongful dismissal per se by an RCMP member, Sheppard D.J. found that in the absence of a contract of employment for a definite period, the position was held during pleasure, the prerogative of the Crown permitted dismissal at pleasure, and the plaintiff could not maintain his action, particularly since the power of dismissal or discharge established by the Act had not been exceeded. This ruling was upheld by the Federal Court of Appeal,[13] on the basis that the Commissioner’s authority to discharge under subsection 13(2) of the Act, supra, had been exercised in accordance with the grounds and procedures set out in the Regulations and CSOs, and consequently the appellant had been lawfully discharged. Kedward does not dispose of the instant case, however, as the plaintiff’s cause of action, if any, is based on the alleged circumventing of dismissal or discharge procedures and forced resignation, in what amounts to a constructive dismissal claim.[14]

In view of its own findings, the Court of Appeal in Kedward did not address Sheppard D.J.’s conclusions that a contract of employment for a definite period was prerequisite to an action for wrongful dismissal, and that otherwise the unlimited prerogative of the Crown permitted dismissal at pleasure. In the instant case, the plaintiff’s re-engagement in July 1985 was not for a definite period, but rather “for continuous service.” However, the weight of authority from the Federal Court of Appeal is that under subsection 13(2) of the Act, provisions of the Regulations setting out the grounds of discharge,[15] and CSOs governing procedures related thereto,[16] members of the RCMP may not be dismissed at pleasure.[17]

In Laroche, the Court dismissed an application to quash the Commissioner’s decision upholding a discharge recommendation. In discussing whether the decision was purely administrative or quasi-judicial in nature, Le Dain J., as he then was, described the nature of members’ employment as follows:[18]

The provisions of the [Act] … and in particular ss. 13 and 15, indicate that a member of the force other than an officer is not in the ordinary master-and-servant relationship but is the holder of an office that is recognized and regulated by statute. It is no less an office because upon appointment a member of the force is required to sign articles of engagement for a period not exceeding five years and by s. 53 of the Act (as well as [then] s. 37 of the Federal Court Act) he is deemed, for purposes of liability, to be a servant of the Crown. This has been the view taken of the status of a police constable to whom … a member of the force should be assimilated: see A.-G. New South Wales v. Perpetual Trustee Co. (Ltd.) et al., [1955] A.C. 457; Nicholson v. Haldimand-Norfolk Regional Board of Com’rs of Police [[1979] 1 S.C.R. 311] …. Nor, as a result of the Regulations … is the office, in so far as the power of discharge is concerned, one which is held at the pleasure of the Crown. I agree with the opinion expressed by Thurlow J…. in McCleery … that what is now s. 67 of the Regulations, which specifies the reasons for which a member other than an officer may be discharged from the force, must be regarded, in view of what is necessarily conferred by s-s. 21(2) of the Act, as a valid qualification of the apparently unqualified power of discharge contemplated by s-s. 13(2). Thus the discharge of a member other than an officer from the force on the ground of unsuitability would appear to fall within the last of the three classes of dismissal described by Lord Reid in Ridge v. Baldwin et al., [1964] A.C. 40 at p. 65, as “dismissal of a servant by his master, dismissal from an office held during pleasure, and dismissal from an office where there must be something against a man to warrant his dismissal”. [Emphasis added.]

The question arises whether the plaintiff, falling as she does within this last class of dismissal, may maintain an action in this Court on grounds associated traditionally and primarily with the master-servant employment relationship, and based on the contract of employment. It has long been recognized that the holding of public office may be characterized by “some contractual relations, whether it be as to salary or terms of employment, on the one hand, and duty to serve faithfully and with reasonable care and skill on the other”.[19] Principles of contract have been found relevant where, for example, a collective agreement provision governing the dismissal of public servants conflicts with a statutory power of dismissal at pleasure.[20]

These principles have also been applied to holders of police office, to whom Le Dain J. likened RCMP members: in Brown v. Waterloo Regional Board of Commissioners of Police[21] (breach of contract was the basis for awarding damages to a police chief whose dismissal had been quashed in judicial review proceedings. Linden J., as he then was, reasoned as follows:[22]

It is clear that the relationship of a police chief or officer and his board is based on a statutory status which is not governed by the ordinary law of master and servant…. once appointed, police officers and police chiefs assume certain duties derived from statute and the common law which are not governed by the ordinary law of contracts….

This does not mean, however, that the law of contract has no role to play in regulating the relations between the police and the boards that supervise them. These boards are granted the power to contract generally…. Hence, although the relations between the police and the boards cannot be governed exclusively by contract law, they are permitted to enter into contracts with one another that do not conflict with their statutory or historic common law duties.

There is no reason to prevent contracts being enforced, even though one of the parties may occupy a public office, carrying with it certain statutory duties and rights. Contractual arrangements here, as elsewhere, will be recognized by the courts as long as there is no conflict with any legislative or common law duty that may be in existence. [Underlining added.]

The Ontario Court of Appeal agreed with Linden J. that “[t]he failure of the board to grant to the plaintiff reasonable salary increases each year, and the customary fringe benefits … were undoubtedly breaches of contract”.[23]

These authorities are, in my view, of no assistance to the plaintiff, who was not governed by a collective agreement, nor party to the sort of contract found to have existed in the Brown case.

I find support for this opinion in the recent decision of the Federal Court of Appeal in Gingras v. Canada.[24] In the course of determining that members of the RCMP were entitled to the federal Public Service bilingual bonus, Décary J.A. examined federal statutes’ various characterizations of members’ employment status, and commented:[25]

A distinction has to be made depending on whether one is dealing with the ordinary law or what I would call the internal law of the federal administration. The fact that a person is called an “employee” for the purposes of the internal law of the Government does not necessarily mean that he is an “employee” in the ordinary legal sense ….

In the ordinary law public servants form a special category of employees and by a long tradition the ordinary rules of contract are not applicable to them. The members of the police forces fall even more clearly outside these rules, as Viscount Simonds noted in Attorney-General for New South Wales v. Perpetual Trustee Co. (Ld.) ([1955] A.C. 457 (P.C.), at p. 482):

There appears to their Lordships to be ample justification for saying, as was said in the High Court, that the service of a constable is “different in nature” or “on a different plane” from the domestic relation, that it is “different both in its nature and “its incidents””, and that, even if some of the incidents which the law implies in the ordinary contract of services are present also in the relation of the constable to the Crown, there is a fundamental difference which makes it necessary to approach with caution the question whether a form of action available in the one case is available in the other also.

Though it is possible that certain distinctions have become obsolete over the years the fact remains that it is understandable for Parliament, in view of the special and ambiguous status of members of the RCMP in the ordinary law, to take care from time to time and for special purposes … to specify that RCMP members are or are not “servants” or “employees” of the Crown. [Emphasis added.]

I therefore conclude that in the particular circumstances of this case, and given the weight of existing authority, the admittedly ambiguous status of RCMP members, such as the plaintiff, does not enable her to maintain a cause of action for wrongful dismissal in this Court, despite the fact that she may not be dismissed at pleasure.

In concluding as I have, I have considered whether this result has the effect of precluding any recourse or monetary compensation for a member of the RCMP alleging similar circumstances. In view of the remedial jurisdiction of the Canadian Human Rights Tribunal, as set out at subsection 53(2) of the Canadian Human Rights Act[26] (CHRA), which provides for compensation for lost wages in the event a complaint is found to be substantiated, I am satisfied such is not the case. In the instant case, the plaintiff did not submit a complaint under that Act, as she might have done.

In view of my conclusion on this issue, it is not necessary to decide whether the plaintiff was theoretically or legally obliged to exhaust internal administrative remedies prior to seeking relief from this Court, or whether those remedies would, in theory, have provided an adequate remedy in the circumstances.

It is worth noting, however, that the “grievance” procedure applicable during the plaintiff’s tenure was governed by sections 45 to 49 of the Regulations. Section 45 refers to a “complaint.” In fact, the plaintiff did lodge a complaint in October 1986. Chapter II.16 of the AM during the relevant period also sets out a more detailed process for “grievances” per se.[27]

The decision of Rouleau J. in Desjardins v. Commr. of Royal Cdn. Mounted Police[28] suggests that the complaint procedure and the grievance procedure are distinct, and that no irregularity results from proceeding with the former rather than the latter. The relevance of the grievance procedure to the plaintiff, whose complaint was under investigation, therefore seems uncertain: it is not clear exactly what it is the defendant proposes she should have grieved, since her pending complaint involved a course of conduct, rather than discrete events susceptible of being grieved such as performance progress reports. Further, as I understand it the process outlined in the CSOs of Chapter II.16 would have required the plaintiff to submit her formal or informal “objection” with respect to those reports to the very immediate and intermediate supervisors she was having difficulty with.

4.         Liability in tort

a.         The parties’ submissions

The plaintiff’s claim is two-fold: first, for the intentional infliction of nervous shock, and second for “ordinary” negligence. She contends, relying on the decision of Noël J. in Boothman v. Canada,[29] that she satisfies the requirements set out therein for establishing the tort of intentional infliction of nervous shock. It is submitted that she was subject to a concerted attempt by the RCMP as an entity to pressure her out of the force because she was expressing concerns over sexual harassment at Red Deer City. The repeated and deliberate harassment at the hands of members of the RCMP occurred within the employment context and led to psychological trauma. The liability of the Crown is thereby triggered, pursuant to section 4 (now section 10) of the CLA, in the same way that it would be if an RCMP officers’ negligence in the operation of a motor vehicle caused personal injury.

The plaintiff identifies three classes of servants of the Crown as tort-feasors: individual constables, who harassed the plaintiff because she was a woman; supervising officers, who knew or ought to have known about the harassment and who chose to do nothing about it; supervising officers who, by their own conduct, contributed to the harassment and assisted in driving the plaintiff from the Force. The plaintiff points to the extensive use made of 1004s, the threat to dismiss her, the refusal to transfer her, and the laying of criminal charges relating to events occurring years previously and known to her supervisors from the outset. She submits that the RCMP’s right to control internal conduct and discipline matters does not extend to the tortious conduct at issue here.

However, the defendant argues that the plaintiff neither pleaded nor proved a conspiracy to drive the plaintiff from the force through infliction of nervous shock. All the evidence establishes is that her supervisors did their duty in supervising her. The courts have no power to interfere with matters of RCMP conduct and discipline, and therefore an action does not lie against an RCMP officer even if the acts complained of are done maliciously and without reasonable cause.[30] Even if the conduct complained of did occur, the only remedies available to the plaintiff are the internal grievance process or the complaint mechanism under the CHRA.

Furthermore, the defendant argues that a cause of action in negligence arises only if such damage is suffered owing to the negligent conduct of a Crown servant, and only if the law recognizes a duty to avoid the damage. In the instant case, the doctrine of common employment limits the master’s liability,[31] and the plaintiff’s claim under this theory is barred by section 4 of the Crown Liability Act (CLA). In addition, to be recoverable as a head of damage, nervous shock must be a recognizable psychiatric condition attributable to the breach of an owed duty of care.[32] Finally, if nervous shock did occur during the course of her employment, the Government Employees Compensation Act[33] (GECA) applies to the plaintiff and her claim is barred by subsection 4(1) (now section 9) of the CLA.

The plaintiff replies that the psychiatric condition of depression has been established, that she does not rely on common employment in order to establish the Crown’s liability, and that, as she did not suffer an “accident,” the GECA does not apply to her.

b.         Analysis and findings

It is useful at the outset to dispose of three points raised by the defendant. First, I find that the common law doctrine of common employment is not relevant to this action, which falls to be decided strictly under the terms of the CLA. As the authorities have pointed out, that doctrine is “now abolished everywhere”.[34]

Secondly, I do not find the decisions relied upon to argue against this Court’s jurisdiction germane to the present case, as neither relates to the vicarious liability of the Crown under the CLA. In the Archer ruling[35] the issue was whether the civil courts had authority to quash convictions entered under the RCMP’s Code of Discipline. The Supreme Court of Canada determined that they did not, in the absence of abuse of power or unauthorized action. In Dawkins a majority of the Court of Queen’s Bench dismissed a libel suit against the plaintiff’s superior officer, on the basis that the latter’s motives were irrelevant where the letters in question were written as an act of military duty. I also note that this Court has entertained numerous applications involving the internal affairs of the RCMP in matters of “conduct and discipline,” and has granted many of them.[36]

Third, while it is true that section 9 of the CLA acts as a bar to proceedings under that statute where compensation has been paid or is payable out of the Consolidated Revenue Fund,[37] counsel for the defendant submitted no authority, and I am aware of none, which suggests the plaintiff’s claim falls within the GECA’s definition of “accident”.[38]

Turning now to the law governing the plaintiff’s claim, the relevant provisions of the CLA read as follows:

3. (1) The Crown is liable in tort for the damages for which, if it were a private person of full age and capacity, it would be liable

(a) in respect of a tort committed by a servant of the Crown, …

…

4. …

(2) No proceedings lie against the Crown by virtue of paragraph 3(1)(a) in respect of any act or omission of a servant of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or his personal representative.

It is trite law that in order to engage the vicarious liability of the Crown, the plaintiff must establish, first, that a tort has been committed by a servant of the Crown, and second, that the tort was committed in the course of the servant’s employment. In the instant case the plaintiff bases her claim on both intentional infliction of nervous shock and negligence. I will deal with each issue separately.

(i)         Intentional infliction of nervous shock

As noted by Noël J. in the Boothman case,[39] judicial recognition of this cause of action in tort originates with the Wilkinson v. Downton case, in which a practical joker informed a woman her husband had been seriously injured, thereby inducing a state of nervous shock and prolonged mental and physical suffering. In finding the defendant liable, Wright J. stated:[40]

The defendant has … wilfully done an act calculated to cause physical harm to the plaintiff—that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.

It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects under the circumstances upon any but an exceptionally indifferent person, and therefore an intention to produce such an effect must be imputed, and it is no answer in law to say that more harm was done than was anticipated, for that is commonly the case with all wrongs. [Emphasis added.]

The Wilkinson principle has been adopted and applied in a number of Canadian cases.[41] In Purdy, the Court found[42] that an intention to cause the plaintiff nervous shock ought to be imputed to the defendant. In Abramzik, Culliton C.J.S. noted[43] “[t]here can be no doubt but that an action will lie for the wilful infliction of shock, or a reckless disregard as to whether or not shock will ensue from the act committed.” In Rahemtulla, McLachlin J., as she then was, applied three criteria gleaned from prior cases:[44] first, outrageous or flagrant and extreme conduct; second, conduct calculated “to produce some effect of the kind which was produced;” third, conduct producing actual harm, i.e., a visible and provable illness. In Timmermans, Catzman J. found[45] the defendant’s limited intention and motivation did not relieve him from liability, particularly in light of his knowledge of the plaintiff’s fragile emotional state.

The above cases involved single precipitating events. However the recent Boothman decision on which the plaintiff relies[46] concerned a course of harassing and intimidating conduct[47] over a seven-month period which caused a severe mental breakdown that was ongoing at the time of the trial seven years later. Noël J. found the defendant, who supervised the plaintiff and who was her sole co-worker, had hired the plaintiff because of her emotional vulnerability, exploited it in order to dominate her and, when that failed, drove her to break down and quit. He concluded that the supervisor’s authority had been exercised wrongfully to inflict mental pain and suffering, to harass, humiliate, interfere with and assault the plaintiff. He found wilful injuria of the Wilkinson type, combined with malicious purpose owing to knowledge of the plaintiff’s psychological fragility, and awarded damages for assault and intentional infliction of nervous shock, in addition to exemplary damages.

Doctrinal authorities have summarized principles arising from the case law as follows. Fridman states[48] that:

The defendant may achieve this [emotional or mental] harm without any physical touching of the plaintiff, in the absence of any threat to the plaintiff’s physical safety, and without in any way infringing the plaintiff’s freedom of movement. It is essential that the defendant cause the harm by his own direct act.

Both extreme conduct and “objective and substantially harmful physical or psychopathological consequences,” rather than “mere anguish or fright,” are required in order for a cause of action to arise.[49] As to the former, Linden notes[50] that:

The quality of outrageousness might … be based on the special position of authority of the defendant. If a landlord, a police officer, or a school principal uttered insults or threats to someone over whose future well-being they had some control, these acts might be considered beyond the bounds of decency, and therefore actionable.

Prosser adds[51] that:

Still another basis on which extreme outrage may be found lies in the defendant’s knowledge that the plaintiff is especially sensitive, susceptible and vulnerable to injury through mental distress at the particular conduct….

The gist of the outrage is the defendant’s knowledge of the plaintiff’s vulnerability, and where there is no such knowledge, conduct which is not otherwise sufficiently extreme leads to no liability, even though the plaintiff may in fact suffer serious injury because of it.

Fleming comments on the intentional element as follows:[52]

Cases will be rare where nervous shock involving physical injury was fully intended. More frequently, the defendant’s aim would have been merely to frighten, terrify or alarm his victim. But this is quite sufficient, provided his conduct was of a kind reasonably capable of terrifying a normal person, or was known or ought to have been known to the defendant to be likely to terrify the plaintiff for reasons special to him. Such conduct could be described as reckless.

…

“Calculated” to cause harm has not been narrowly interpreted ….

Irvine suggests[53] that the interpretation of the term “calculated” that accords best with its use in Wilkinson and the subsequent case law is

… that nervous shock … was not even reasonably foreseeable, given the defendant’s limited knowledge of his victim’s frailties; still less intended: but that some unwelcome, uncomfortable or unpleasant emotional apprehension or sensation … was foreseen and intended, even though that apprehension or emotional discomfort so foreseen fell far short of the traumatic nervous shock in fact caused.

Irvine also cites case law to the effect that limitation of liability based on remoteness and lack of foreseeability is inapplicable in the field of intentional torts.[54]

The case at hand involves a situation unlike those occurring in any of the decisions reviewed. First, several of the plaintiff’s fellow members and superiors are involved, as opposed to a single individual. A further distinction is that here the impugned behaviour involves both a course of conduct on the part of a number of those individuals, as well as discrete acts or omissions on the part of the same or other individuals, over a four-year period. Given this unique set of circumstances, I am nevertheless satisfied that the above authorities support the plaintiff’s claim for intentional infliction of nervous shock, for reasons already given.

I am satisfied that the evidence reviewed above establishes that the conduct directed toward the plaintiff was extreme, and calculated “to produce some effect of the kind which was produced”.[55] I have also concluded that the plaintiff’s mental and physical deterioration until her reassignment in February 1987 meets the third criterion outlined in Rahemtulla, i.e., actual harm in the form of illness. In my view the plaintiff’s condition, attested to by both Drs. Cooper and Shih, was analogous to those for which damages were awarded in that case and in the Timmermans case.[56]

Further, the uncontradicted evidence concerning the plaintiff’s condition in response to learning of the criminal investigation establishes that it, too, was more than “mere anguish and fright.” That evidence is that the plaintiff’s depression in Red Deer in 1986 was nothing compared to her depression when the investigation began. I note that in Rahemtulla,[57] McLachlin J. found the plaintiff’s response to the defendant’s tortious conduct met the third criterion of actual harm despite the absence of expert medical evidence. Noël J. noted in Boothman,[58] that the requirement that recognizable psychiatric illness be proven appears to be most stringently observed in claims for negligent infliction of nervous shock, which typically involve reactions to witnessing accidents or their victims, and in which the ordinary rules of negligence apply.

Having concluded the plaintiff was subjected to the intentional infliction of nervous shock by servants of the Crown, I must consider whether the tortious conduct occurred during the course of their employment. In my view there can be no question that those acting in a supervisory capacity or in a position of authority with respect to the plaintiff were acting in the course of their employment. I concur with Noël J. in Boothman[59] that there is

… no difference in law between the case where a servant who, entrusted with the supervision of personnel, abuses that authority in the manner described in these reasons, and that of a servant entrusted with the care of goods who converts those goods for his or her own use. In both cases, the wrong is directly attributable and connected to the duty of responsibility conferred on the servant.

With respect to the plaintiff’s fellow members or peers, the question is

… whether the activity was reasonably incidental to the performance of [their] authorized duties, or involved so substantial a departure that the servant must be regarded as a stranger vis-à-vis his master.[60]

In my view, the impugned conduct toward the plaintiff occurred strictly within the confines of the working relationship and was occasioned by it. I find that the servants of the Crown were acting during the course of employment.

(ii)        Negligence

In order to engage the Crown’s vicarious liability under this heading, a plaintiff must show:[61]

… (i) that he was owed a duty of care by the [Crown servant]; (ii) that the [Crown servant] should have observed a particular standard of care in order to perform or fulfil that duty; (iii) that he broke his duty of care by failing to fulfil or observe the relevant standard of care; (iv) that such breach of duty caused damage or loss to the plaintiff; (v) that such damage was not too remote a consequence of the breach so as to render the [Crown servant] not liable for its occurrence.

Canadian courts have used a two-step approach to the test of duty adapted from the classic cases of Donoghue v. Stevenson[62] and Anns v. Merton London Borough Council:[63]

(1)  is there a sufficiently close relationship between the parties … so that, in the reasonable contemplation of the [defendant], carelessness on its part might cause damage to that person? If so,

(2)  are there are any considerations which ought to negative or limit (a) the scope of the duty and (b) the class of persons to whom it is owed or (c) the damages to which a breach of it may give rise.[64]

The question whether a duty exists in a given situation is one of law. As to the standard of care required, it is that of the reasonable ordinary man or woman. It is an objective standard. Fridman summarizes relevant considerations as follows:[65]

Negligence in law … means some failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do. The test of whether this act or failure is negligent is whether it would be adjudged so by the “man in the street”.

I am satisfied that the evidence also establishes negligence that engages the Crown’s vicarious liability. In my view there is no doubt that as the plaintiff’s immediate supervisor, Cpl. Mazur owed the plaintiff a duty of care and breached that duty consistently. I find that over a lengthy period, he deliberately refused to exercise his authority to put an end to the conduct of harassment of which he was well aware and which he in fact participated in on occasion, thus condoning that behaviour. He further neglected utterly to respond to the plaintiff’s distress signals as his position of responsibility required him to do. And, as mentioned earlier, superior RCMP officers failed to come to the plaintiff’s assistance.

In my view the circumstances of this case present no issue of remoteness or foreseeability. Cpl. Mazur was not an unconcerned bystander without authority to exert control over the behaviour of his subordinates: his negligence played a direct causative role in the damage suffered by the plaintiff, and he was clearly acting in the course of his employment.

5.         Discrimination under the Charter

In view of my finding that the defendant is liable in tort, it will not be necessary to deal with this issue.

6.         Damages

a.         The parties’ submissions

The plaintiff claims special damages, being lost wages, and general damages for negligence and for the pain and suffering resulting from the intentional infliction of nervous shock. In her written arguments, she also submits, citing the Boothman case[66] as authority, that it is within the Court’s jurisdiction to award exemplary or punitive damages (such damages were not sought in her statement of claim).

On the issue of special damages, the plaintiff proposed three alternative scenarios for purposes of calculating her losses. The first relates to lost wages from September 1987 to the date of trial in September 1993 in the amount of $201,000. This amount represents the projected amount of her RCMP wages minus the amount earned in part-time jobs over the relevant period. The second scenario involves lost wages from September 1987 to September 1990, when the plaintiff would have completed ten years’ service with the RCMP, minus the plaintiff’s earnings during that period. The amount is $100,500. This option was explained on the basis that the plaintiff’s intention upon enlistment in the RCMP was to complete at least ten years’ service with the Force. The third amount projected is $45,000 representing the amount of the plaintiff’s medical discharge pension, or 60% of her 1987 salary times two. The plaintiff adds that she made every attempt to mitigate her damages by obtaining part-time employment within months of her separation from the Force.

As to general damages, the plaintiff claims that the evidence establishes the hardships and suffering she endured as a result of the defendant’s tortious conduct, from which it took her three years to recover. It is also argued that awards of $5,000 damages for the intentional infliction of nervous shock in previous cases are defined by the particular circumstances of those cases, and are not binding on this Court.

The defendant, on the other hand, claims that the plaintiff has not established that any damages she may have suffered were caused by the matters alleged. Furthermore, the plaintiff’s failure to avail herself adequately of the RCMP’s medical services represented both a breach in causation and a failure to mitigate. The defendant also claims that no evidence of any weight supports the plaintiff’s claim to special damages and, in any event, special damages in cases of lost employment are limited to the appropriate reasonable notice period. However, according to the defendant, the plaintiff made no reasonable attempt to mitigate.

b.         Analysis and findings

(i)         Special damages

As Fleming points out:[67]

So far as special damages are concerned, the avowed aim is to put the victim in the same financial position he would have been in had the accident not happened. This is often expressed by saying that he is entitled to restitution in integrum.

It has also been stressed,[68] in relation to lost earnings, that:

… [T]he overwhelming weight of authority supports the view that the primary basis for assessment under this head is an estimation of loss of earnings, in the sense that the plaintiff’s damages reflect what he would have earned but for the accident, rather than what he had the capacity or ability to earn.

…

This head of damages is intended to reflect “pecuniary loss”. The person who would have chosen not to work at all has suffered no such loss.

The only evidence of lost earnings adduced during the trial consisted of a handwritten summary of calculations resulting in the above-mentioned figures.[69] Counsel for the defendant argues that little weight should be given to those figures, but has not in my view seriously challenged them, either during cross-examination or in written submissions. I am prepared to give weight to the plaintiff’s figures as broad guidelines for the awarding of special damages. In light of the plaintiff’s testimony, the second figure relating to lost earnings up to the completion of ten years’ service, or $100,500, appears to be the most appropriate basis on which to calculate an award.

I have considered the plaintiff’s employment history since separating from the RCMP. She testified that she took off most of October, November and December 1987, and subsequently occupied part-time jobs, principally with various branches of the Royal Bank of Canada, until December of 1990. From December 1990 to the date of trial she worked part-time for the British Columbia Government.

Based on the plaintiff’s figures, I have concluded $88,000 is a suitable award for lost earnings from September 1987 to September 1990. I have arrived at this figure on the basis that no award should be made for 1987, the final months of which the plaintiff testified she simply “took off.”

(ii)        General damages

Cooper-Stephenson and Saunders remark[70] that, as is the case for pecuniary loss,

The fundamental purpose of damages for non-pecuniary loss is also compensation, but it cannot be on the basis of restitution; … Nothing can erase the memory of past pain and suffering.

Canadian courts have adopted a functional approach to the assessment of damages for non-pecuniary loss. In Smyth v. Szep, the British Columbia Court of Appeal stated:[71]

Since Lindal v. Lindal, [1981] 2 S.C.R. 629 … if not before, the law has been clear that ultimately the appropriate solace for a plaintiff’s pain and suffering is to be determined by the functional approach. The trial judge is to assess damages for that plaintiff based upon that plaintiff’s injuries and that plaintiff’s pain and suffering and taking into account all of the factors unique to the circumstances of that plaintiff.

In essence, then, the functional approach

… is not to quantify either an asset or lost happiness, but instead to assess the amount which in the particular case will provide a reasonable measure of consolation to the victim for his particular mental condition, …[72]

In determining an appropriate award for pain and suffering in the present case, I have taken into account evidence of the plaintiff’s condition during her final year on the Force and her efforts to attenuate her difficulties with professional assistance provided by, or on referral by, RCMP services. I have also considered the plaintiff’s testimony that she did not recover from her experiences on the Force for three years, but that over that period she did not seek any professional assistance to relieve her problems or to assist her in speeding up the recovery process. In my view the fact that she did not actively seek out psychological or psychiatric help does not represent a failure to mitigate analogous to actual refusal of offers of professional help, but is still a factor to be weighed.

As Noël J. noted in Boothman,[73] precise measurement of non-pecuniary damages is always difficult. However, taking into account previous awards for intentional infliction of nervous shock,[74] I am of the view that, as in those cases, $5,000 will provide the plaintiff “a reasonable measure of consolation” for her injured dignity arising from that tortious conduct.

7.         Conclusion

Judgment is awarded to the plaintiff in the amount of $93,000, being $88,000 for special damages for lost earnings, and $5,000 for general damages. She will also receive interest calculated pursuant to the provisions of the Alberta Judgment Interest Act,[75] as well as her costs in this action.

---