Money for hurt feelings

By Midhath Mahir

Employees who have been wrongfully dismissed may be able to claim aggravated damages - monetary compensation awarded by the court for mental distress or anguish. For a long time, Canadian courts did not recognize damages for mental anguish, as it was not something that could be claimed under breach of contract, especially if due notice was given in employment cases.

This all changed in the 2000s: (see the Supreme Court of Canada decision in Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R., 701, and modification of these principles in Honda Canada Inc. v. Keays., [2008] S.C.C. 39).

Since then, Canadian courts have become more open to (but still very cautious about) awarding aggravated damages in situations where employment contracts have been breached, which in turn caused mental anguish or distress to the employee. This is also true in cases where employees are thrown out of their jobs in a wrongful, very unfair or disgraceful manner.

Two things need to be established in court to have a chance of claiming aggravated damages if you have been wrongfully dismissed:

One - proof that the employer acted in an unfair manner or bad faith in dismissing you from employment. For example, you were verbally humiliated, or falsely accused and addressed in an insensitive manner in front of your fellow employees before being sent home in disgrace.  

Two - you would need to prove that you suffered mental distress because of that manner of dismissal – and not just as a result of the dismissal. E.g. depression, anxiety, lack of sleep, resort to medications and doctors’ prescriptions etc.

Courts take into consideration factors such as age, length of time you were in employment with that employer, whether you had a good track record at work, whether you were induced to come work by leaving another lucrative position (migrant workers face this quite a lot), the way your dismissal was handled, the difficulty in finding another job that is similar to the one you lost, or loss of reputation in your area of profession, etc. The list is not exhaustive.

Aggravated damages are notoriously difficult to assess accurately, and courts are very cognizant of this. Understandably so – how does, and can one, measure the hurt feelings of a human being, without being unfair to the other side? Courts have to engage in what is often a difficult balancing act here.

You may wonder how much hurt feelings are worth in monetary terms, and whether it is even worth pursuing the matter in courts where the process is long and arduous. Case law points to damages ranging from as low as $7000.00 or as high as $30,000.00. Ultimately, aggravated damages depend on a case by case assessment, including the evidence, the circumstances surrounding the termination, and the mercy of the court.