The idea of adding members of management as defendants in wrongful dismissal cases against corporate employers is not a new one.  The case of Watson v. TrojanOne Ltd., Harrison and Lee is a useful reminder of the current status of the law in this area.

In this case, the Plaintiff, Watson, sued his former employer, TrojanOne, as well as two individuals named Harrison and Lee.  Harrison was TrojanOne’s President and CEO and Lee was its Chief Creative Officer.

The matter came before the court by way of a motion brought by Harrison and Lee to have the action dismissed as against them on the basis that Watson did not have the right to sue them personally.

The judge summarized the law on the point by indicating that the officers of a corporation are not liable personally for what they do within their authority and on behalf of their corporation.  However, they may be liable in an action against the corporation if there is some conduct on the part of the officer that is either tortious in itself, or that amounts to misconduct that is independent from that of the corporation.

Historically, this point has come up rather frequently in cases in which a Plaintiff sues an officer of the corporate employer for inducing the company to breach the contract of employment with the Plaintiff by terminating the employment without reasonable notice.  It is clear in such cases that unless the officer can be said to have acted in bad faith and against the company’s best interests, he or she cannot be sued for inducing breach of contract where a claim for breach of contract is available against the company.

As a result, for an officer of an employer company to be liable, the claim against that individual must specifically identify the cause of action that is asserted against the officer and explain why he or she is being sued separately from the company.

It is to be kept in mind that this matter came before the court as a procedural attack on the statement of claim as against Harrison and Lee.  The only question before the Court was as to whether or not a case against those individuals had been properly pleaded.

The statement of claim contained the usual pleadings as against TrojanOne.  With respect to both Harrison and Lee, it contained a series of quotes allegedly attributable to each of Harrison and Lee in which they are alleged to have made a variety of degrading and humiliating statements to Watson and others.  Some of the statements even had racist overtones.

The Plaintiff’s allegation was that this conduct created a poisoned and hostile work environment causing the Plaintiff to suffer from severe anxiety and depression for which he sought and received medical treatment and therapy.

At some point, a public altercation took place in which the Plaintiff was physically threatened and verbally abused.  The Plaintiff alleges that as a result, he had to stop work and take a leave of absence immediately for medical reasons.

According to Watson’s Statement of Claim, this all amounted to constructive dismissal.  Watson alleged that the conduct of Harrison and Lee was flagrant and outrageous, they intended to harm Watson or, at least, knew that their conduct would cause harm, and Watson suffered a visible and provable illness.  As a matter of law, these are the elements of the tort of intentional infliction of mental distress.

Accordingly, the Court concluded that Watson had adequately pleaded that independent actionable wrongs had been committed by Harrison and Lee. The case was permitted to proceed against them as well as against TrojanOne.

It would seem to follow logically that where a member of management is verbally abusive or conducts himself or herself in a manner that creates a poisoned work environment, and that conduct causes visible and measureable harm, that conduct will never be considered to be in the best interests of the company and may well serve as the basis of a claim against him or her personally.

The recent case of Stevens v. Walsh provides a useful reminder about the current status of the tort of intrusion upon seclusion, more commonly thought of simply as invasion of privacy.  In one respect, however, this case may push the boundary of the tort to a new level.

The tort of intrusion upon seclusion requires proof of three elements.  Firstly, the defendant’s conduct has to be intentional.  Secondly, the defendant must have invaded the plaintiff’s private affairs or concerns without lawful justification.  Thirdly, a reasonable person would regard that invasion as highly offensive causing distress, humiliation or anguish.

In this case, both the plaintiff, Mr. Stevens, and the defendant, Ms. Walsh, were Air Canada pilots.  Mr. Stevens was in the process of getting a divorce from Mrs. Stevens.
Ms. Walsh and Mrs. Stevens were friends.

There is an Air Canada password protected website accessible only to Air Canada employees showing pilots’ schedules.  A pilot can add another pilot to a “friends list” so that friends can check that pilot’s schedule is.  Mr. Stevens had added Ms. Walsh as a friend so that Ms. Walsh could access Mr. Stevens’ calendar.

In this case, Ms. Walsh testified that her friend, Mrs. Stevens, had called her. Mrs. Stevens was very upset and indicated that the extent to which her estranged husband worked was an issue in her divorce case.  Ms. Walsh assumed that Mrs. Stevens would have access to her husband’s schedules but Mrs. Stevens was so frantic that Ms. Walsh, wanting to keep her friend calm, accessed the site and sent Mr. Stevens’ scheduling information to Mrs. Stevens.  Ms. Walsh subsequently swore an Affidavit setting out the same information.

Mr. Stevens subsequently sued Ms. Walsh.  Mr. Stevens’ complaint was not that Ms. Walsh had accessed Mr. Stevens’ flight schedule but rather that Ms. Walsh had passed that information along to someone else.

The Court found that the tort of intrusion upon seclusion had been committed by Ms. Walsh.  The Court was satisfied that for an employee to obtain information under the guise of review for legitimate work related purposes and then use it by sharing it with her colleague’s estranged wife for use against the colleague in a divorce proceeding, amounted to a significant invasion of personal privacy which, on an objective basis, was highly offensive.

The interesting aspect of this particular case has to do with the nature of the information itself.  If the extent to which Mr. Stevens spent time doing his job was an issue in the divorce case, one would have thought that his work schedule would have to have been produced in the litigation itself.  Ms. Walsh provided a copy of the schedule, or the information in it, only to Mrs. Stevens.  She did not make the information available to anyone else.  In this case, it would seem that Mrs. Stevens ultimately would have been able to obtain that information anyway and indeed, that Mr. Stevens would have been obliged by law to provide it.

According to this case, however, this additional aspect of the matter is not relevant.  Furthermore, the fact that Ms. Walsh had been given permission by Mr. Stevens to access this information was similarly irrelevant.  According to this case, if a person obtains information through lawful means and then disseminates it to someone who otherwise would be entitled to it anyway, this can still amount to unlawful conduct.