In addition to claims for damages arising in respect of lost wages and/or notice or pay in lieu of notice, terminated employees may also pursue tort claims against their former employer depending upon the facts of the specific case. Canadian courts have recognized a number of torts claims available to employees in the employment context, but have also discounted the availability of others. This is an area of law that has seen much judicial comment in the last few years, and will no doubt be a source of much future discussion.

Below is a list of some of the available related tort claims made in wrongful dismissal actions and a general list of the main tests for each type of claim.

Inducing Breach of Contract

The Plaintiff must prove:

(i) the defendant had knowledge of the contract between the plaintiff and the employer;

(ii) the defendant’s conduct was intended to cause the employer to breach the contract;

(iii) the defendant’s conduct caused the employer to breach the contract; and

(iv) the plaintiff suffered damages as a result of the breach.

Defence: The defendant was acting in the ordinary course of his employment and was not motivated by bad faith or purely personal reasons in coming to the decision.

Intentional Interference with Economic Relations

The Plaintiff must prove:

(i) interference by the defendant with the actions of a third party with whom the plaintiff has an economic interest;

(ii) an intention by the defendant to cause loss to the plaintiff; and

(ii) the interference with the third party must be “unlawful” and not simply competitive activity.

Defence: The conduct that is directed at the third party must not only be intended to cause damage to the plaintiff but must actually be unlawful.

Defamation

The Plaintiff must prove:

(i) that the defendant made an untrue statement which harms the reputation of the plaintiff and lowers his or her esteem in the community or exposes him or her to hatred, contempt or ridicule; and

(ii) the statement must be published either in writing (libel) or verbally (slander) to one or more people.

Defences:

(i) the statement was justified because it was true;

(ii) the statement is protected by a “qualified privilege” which means that the statement was made without malice pursuant to a moral, social or legal duty to communicate the information;

(iii) the statement is “fair comment” which means that the underlying facts are correct and the public interest is served by allowing an opinion on the topic; or

(iv) an apology was made which was intended to take the sting out of the defamation.

Intentional Infliction of Mental Suffering

The Plaintiff must prove:

(i) the defendant’s conduct was flagrant and outrageous;

(ii) the defendant’s conduct was calculated to produce harm or harm was “substantially certain” to follow; and

(iii) the defendant’s conduct caused provable injury to the plaintiff.

Defence:

(i) the plaintiff failed to prove really bad conduct, actual intent to injure or real damages.

Negligent Infliction of Mental Suffering

The Plaintiff must prove:

(i) the defendant and the plaintiff had a “relationship of proximity”; and

(ii) injury or damages to the plaintiff were reasonably foreseeable as a result of the defendant’s conduct;

(ii) the plaintiff suffered damages as a result of the conduct; and

(iii) the harm suffered was not too remote to attract legal responsibility.

Defence: There is, at present, no cause of action against an employer for negligent infliction of mental suffering by an employee for policy reasons.

Negligent Investigation

The Plaintiff must prove:

(i) the defendant and the plaintiff have a “relationship of proximity”;

(ii) injury or damages were reasonably foreseeable as a result of the conduct;

(iii) the plaintiff suffered damages as a result of the breach; and

(iv) the harm suffered was not too remote to attract legal responsibility.

Defence: There is, at present, no cause of action against an employer for negligent investigation for policy reasons.

Intentional or Negligent Misrepresentation

The Plaintiff must prove:

(i) there was a "relationship of proximity”" between the defendant and the plaintiff;

(ii) a representation was made by the defendant to the plaintiff which was untrue, inaccurate, or misleading;

(iii) the defendant must have intentionally or negligently made the misrepresentation;

(iv) the plaintiff must have reasonably relied upon the misrepresentation; and

(v) the reliance must have caused damages.

Defence: The defendant exercised such reasonable care as the circumstances required so as to ensure the accuracy of his or her representations or alternatively that the elements above have not been made out.

Injurious Falsehood

The Plaintiff must prove:

(i) the publication of false statements, either orally or in writing;

(ii) the false statements reflect adversely on the plaintiff's business or property, and were intended to induce persons not to deal with the plaintiff;

(iii) the false statements were made maliciously; and

(iv) the plaintiff suffered damages.

Defence: The plaintiff failed to prove he or she suffered actual damage, for example loss of business or employer interest.