Treatment of sexually harassed employee grossly insensitive, but damages claimed were excessive

Employer was insensitive to employee by rehiring sexual harasser, but its intentions were not to harm
By Andrew Cogswell
||Last Updated: 08/09/2017

In the recent decision of Colistro v. Tybatel, the Ontario Superior Court of Justice provided a lesson to employers about the seriousness of sexual harassment in the workplace. Linda Colistro sought damages against Tbaytel and the City of Thunder Bay for constructive dismissal and intentional infliction of mental suffering. As will be discussed in further detail below, the court significantly reined in the extraordinary damages sought by Colistro.

Tbaytel is a Municipal Services Board, a creature of stature created by the City of Thunder Bay, Ont., to manage and provide the city’s telecommunication services. In 2007 a structural re-organization of Tbaytel led to Mr. Benoit (a former employee) being re-hired. Benoit had previously been the direct supervisor of Colistro and was terminated in 1996 following allegations of sexual harassment by Colistro and others. The re-hiring of Benoit was announced in a company meeting, which Colistro promptly exited and never returned.

The constructive dismissal claim sought the following with respect to damages:

  • $100,000 in reasonable notice damages
  • $250,000 in “Wallace” damages (employer conduct during the dismissal)
  • Damages for intentional infliction of mental suffering:
    • $1,000,000 in general damages
    • $401,567.64 for past economic loss
    • $680,666.25 for future economic loss
    • $64,533.70 for past loss of housekeeping value
    • $85,834.23 for future loss of housekeeping value
    • $500,000 for aggravated damages
    • $300,000 for punitive damages

The court agreed that Colistro had been constructively dismissed, and after applying necessary deductions, the court assessed her wrongful dismissal damages at $14,082.  The tort claims however, are a different story.

The legal test for the tort of intentional infliction of mental suffering requires three elements to be proven:

  1. That there was flagrant or outrageous conduct
  2. That the conduct was calculated to produce harm
  3. That the conduct resulted in a visible and provable illness.

Tbaytel’s conduct of proceeding with hiring Benoit, in light of the knowledge of the complaint and affect it was having on Colistro, was determined by the court to satisfy the first element. The third element was also established through medical evidence of ongoing PTSD and depression. The second element, however, was not established. The conduct, while “outrageous,” was not found to be “calculated to produce harm.” In other words, Colistro failed to establish the conduct was intentional with respect to the harm it produced. Therefore her claim for over $3 million was dismissed. After dismissing Colistro's claim for intentional infliction of mental suffering Justice Fredeau reviewed the damages requested and commented on the appropriateness of each. Justice Fredeau framed the $1 million in general damages as “grossly excessive” and set the value at $100,000 if her claim had been successful. The court also completely dismissed the notion that aggravated or punitive damages would have been appropriate in the circumstances. Tbaytel’s conduct, while outrageous, was not considered malicious or oppressive. The court also reduced the damages for past and future economic losses to $193,719 and $279,064 respectively.

The court did find favour in Colistro’s claim of constructive dismissal and the manner in which her dismissal was carried out. Colistro was a 20-year employee, 39 years old at the time of the alleged dismissal, and working as an administrative assistant. The hiring of Benoit and the treatment of Colistro in the process was found to make continued employment intolerable. The decision to re-hire Benoit after investigating the very negative reaction from Colistro was outrageous and “a blatant disregard for the interests of Ms. Colistro.” The accommodation efforts to limit contact between Colistro and Benoit and Tbaytel’s position on the issue “re-victimized the plaintiff and minimized the past conduct of Mr. Benoit in the eyes of the plaintiff and other Tbaytel employees.” In addition to the wrongful dismissal damages noted above, the court ordered the employer to pay $100,000 in damages for Tbaytel’s unduly insensitive and grossly unfair treatment of Colistro.

For more information see:

  • Colistro v. Tybatel, 2017 CarswellOnt 9364 (Ont. S.C.J.).

Andrew Cogswell is an associate practicing labour and employment law with CCPartners in Brampton, ON. He can be reached at (905) 874-9343 ext. 241 or

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