Friday, 29 July 2016

Stupid creeps should pay dearly for their indiscretions

I have always believed that stupid people who do creepy things to others should pay dearly for their repulsive behavior. My policy is that if someone does me wrong and doesn’t apologize, I don’t forget and I don’t forgive. I get even no matter how long it takes to wreak my revenge on them. And what I do to them is perfectly legal.

Many years ago, a cop charged me with disobeying him after he read my complaint I had filed against him. Subsequently, I had to undergo a five day trial. He told my lawyer that he wished he hadn’t ever met me. I waited for seven years before I wreaked my revenge on him. The reason for my patience was my belief that the higher they go in life, the greater will be their pain when they fall. Seven years later, the cop became the chief of police. Now he was going to feel the pain I had planned for him.  

The mayor wanted him fired for indiscretions he committed against other people. I sent him the transcript of my trial in which there was evidence that the cop had perjured himself eight times in his testimony against me. That was what the mayor had hoped he would get. It was agreed by his aldermen that he should be fired. They needed me to testify at his hearing. I told the City Fathers that their chief got fired from the Toronto Police Force for having affairs with the wives of fellow officers when those officers were on duty. I told them that his former partner told me that this particular cop had beaten suspects while they were handcuffed. I also told them that if they let their chief remain on their police force in any capacity, he will try and frame them like he tried to frame me.  Half an hour later, he was fired without a pension. The last thing I heard of him was that he was a security guard in another city.  

Another cop charged me with assaulting a retired boxer with a weapon (my 14-inch flashlight) I struck the man alright and knocked him out but it was with my fist. I was a process server and he was trying to drag me back to his apartment after I handed his wife a $5 million dollar claim. The judge hearing my case after hearing testimony from the boxer and his wife that I used only my fist on him, he  found me not guilty and chastised the retired boxer for assaulting me in the first place.

I intended to get even with the cop because of two reasons. The first was that since my flashlight had many dints in it (rolling around the floor of my car) he presumed that I hit the man with the flashlight. The second reason was because the cop didn`t interview the security guard who let me in the building. If he had, he would be told that I didn`t have the flashlight with me when I entered the building.

I filed a complaint against the cop. I made sure that my complaint wouldn`t be dealt with for a very long time. This meant that all the time the hearing was pending (5 years) he couldn`t get promoted.

Last year, I was in a serious car accident and was hospitalized with a broken arm and other more serious injuries. One night, I decided to sleep at the end of the hall as my roommate was screaming for hours. I sat on a comfortable chair and soon after I fell asleep. Sometime later, a young female volunteer ordered me out of the chair by claiming that it was her chair. (It actually was the hospital`s chair) She threatened me that if I didn`t get out of the chair, she would drag me out of the chair. She reached for my broken arm and I said to her in a very firm voice. “You touch that arm and your hospital career will come to an abrupt end.” 

It took me a month to wreak my revenge on this stupid creepy woman. I convinced the president of the medical firm that operated three hospitals (including the one I was in) that this woman was a danger to patients. He ordered that she was no longer welcome in any of those three hospitals. The agency that used her services also told her in so many words to take a hike. Had she apologized to me, I would have forgiven her and she would still be offering her services to the patients in the three hospitals.   

And now I will tell you of a woman who was treated terribly by two really creepy supervisors where she worked and believe me, the firm where she worked and one of the supervisors paid dearly for their indiscretions. You will love this story about getting even. I got his information from the transcript of the Ontario Court of Appeal

The case involved a wrongful dismissal action that arose out of a long-term employment relationship between the appellant, Vicky Strudwick, and the respondent, Applied Consumer and Clinical Evaluations Inc., a business that recruits people to participate in focus groups. While the evidence is scant, the record does indicate that Applied Consumer is a relatively small, family-held company with approximately 80 employees. Ms. Strudwick worked for Applied Consumer for over 15 years, initially in data entry and later instructing recruiting staff. At the time of her dismissal in May 2011, Ms. Strudwick was earning $12.85 per hour. 

In October 2010, Ms. Strudwick suddenly became completely deaf. While the cause is uncertain, her doctors believe it was a virus. At that time, Raymond Berta, the owner and manager of Applied Consumer, was away from his business dealing with a medical problem. The general manager of Applied Consumer, Andrew Hoffman, had taken over the operations of the company in Mr. Berta’s absence.

Almost immediately after Ms. Strudwick became deaf, Mr. Hoffman, together with Ms. Strudwick’s immediate supervisor, Liz Camilleri, commenced a campaign of abuse against Ms. Strudwick designed to force her resignation. In summary, in addition to publically belittling, harassing and isolating Ms. Strudwick in ways relating to her disability, Applied Consumer not only denied Ms. Strudwick any accommodation of her disability but also took specific steps to increase the difficulties she faced as a result of her not being able to hear. The culmination of this abuse came on May 27, 2011 when Mr. Hoffman fired Ms. Strudwick for a “stunt she had allegedly pulled” at a company event.

Ms. Strudwick sued Applied Consumer for damages for wrongful dismissal and related claims arising out of the abuse. Applied Consumer did not defend the action and was noted in default. After an unsuccessful attempt to have the noting in default set aside, a hearing took place to assess damages. The motion judge considered Ms. Strudwick’s uncontradicted evidence and submissions of counsel for both parties  and granted judgment in favour of Ms. Strudwick in the aggregate amount of $113,782.79, including pre-judgment interest, plus $40,000 in costs.

Ms. Strudwick appealed the damages assessment on the basis that, given Applied Consumer’s extraordinarily egregious conduct, the motion judge erred by assessing damages that were simply too low. She also sought leave to appeal the motion judge’s costs award. Applied Consumer did not challenge the motion judge’s damage awards. However, in its cross-appeal, it sought leave to appeal costs. If leave was granted, it asked this court to reduce the costs award to $20,000.

There were two main aspects of abuse against Ms. Strudwick.  

Applied Consumer’s general treatment of Ms. Strudwick and its conduct in relation to accommodating her disability. With respect to the cruel treatment, the evidence demonstrated, and the motion judge found, that Mr. Hoffman and Ms. Camilleri tormented Ms. Strudwick for the specific purpose of making the work environment intolerable. For example, Ms. Camilleri would purposely give Ms. Strudwick instructions in a manner that prevented her from lip reading. Then, Ms. Camilleri would call Ms. Strudwick “stupid” for not understanding the instructions. Ms. Camilleri would chastise Ms. Strudwick for not answering the telephone. Mr. Hoffman demanded that Ms. Strudwick produce a doctor’s opinion as to the precise cause of her hearing loss. Since, as previously mentioned, the doctors were unable to identify the cause of Ms. Strudwick’s hearing loss and so instead she provided Mr. Hoffman with hearing test results. In response, Ms. Camilleri accused Ms. Strudwick of being “too cheap” to produce a doctor’s note. Ms. Camilleri suggested to Ms. Strudwick that she “just quit” and “go on disability”. The motion judge found that this conduct was intended to force Ms. Strudwick to resign.

 In terms of accommodation, the trial judge provided a description of Mr. Hoffman’s abusive conduct toward Ms. Strudwick concerning the refusal of even the most basic accommodation of her disability. Details of this refusal to accommodate included denying Ms. Strudwick with the following;

The assistance of the Canadian Hearing Society in coming to the office and performing an accommodation assessment; access to important information in print; permission to bring an assistance dog to the workplace (it is of note that Mr. Berta had regularly brought his dog into the office); permission to use a special voice carry over telephone at her own expense;  the benefit of a visual fire alarm that she also offered to pay for or her request to assign a person to notify her if the fire alarm was activated;  her request to turn her desk around so that she could see people as they approached; and  her request to use a vibrating or light-activated pager given to her by the Canadian Hearing Society. Mr. Hoffman took the position that these accommodations were “unnecessary”.

Applied Consumer’s offensive response to its obligation to accommodate Ms. Strudwick’s disability went further. As previously mentioned, in addition to denying accommodation, Mr. Hoffman and Ms. Camilleri took specific steps clearly designed to exacerbate the challenges Ms. Strudwick faced as a result of her hearing loss. These steps included advising co-workers not to talk to her and instructing other office workers to telephone Ms. Strudwick so she would miss the call thereby providing Ms. Camilleri with yet another opportunity to ridicule her.

In summary, in the lead-up to Ms. Strudwick’s termination, she was belittled, isolated, humiliated and made to suffer the effects of her disability to the greatest extent possible. This conduct was deliberate, malicious and designed to force Ms. Strudwick to quit a job she had held for almost 16 years.

These two creeps had been in effect, mentally torturing this poor disabled woman.

The employees of Applied Consumer had formed a Toastmasters Club. This voluntary group met periodically at the workplace. The company encouraged participation in the club. Ms. Strudwick was one of ten employees of Applied Consumer who attended the Toastmasters’ meeting on May 26, 2011. She helped select the topics to be addressed but did not give a presentation.

The next day Mr. Hoffman, in front of 13 other employees, confronted Ms. Strudwick about the Toastmasters’ meeting. He berated her, calling her a “goddamned fool”. Then, in the presence of Ms. Camilleri and another employee, Mr. Hoffman terminated Ms. Strudwick’s employment for insubordination and wilful misconduct, referring to a “stunt” at the Toastmasters’ event.

Mr. Hoffman immediately provided Ms. Strudwick with a document confirming her termination, a cheque for three months’ pay and a form of release. When she did not sign the release, Mr. Hoffman took the cheque back. At that point, Ms. Strudwick was escorted to her desk to collect her belongings and marched out of the building in front of her co-workers.

Ms. Strudwick did not receive her outstanding pay until Labour Community Services of Peel Region intervened. Applied Consumer tendered a document to Employment Services of Canada indicating Ms. Strudwick had been fired for insubordination and wilful misconduct. This delayed Ms. Strudwick’s ability to secure unemployment (UI) insurance payments.

Ms. Strudwick’s efforts to mitigate her damages were largely unsuccessful. In September 2014, she obtained part-time employment working sporadically for $60 per day.

Mr. Hoffman who was responsible for managing the company in Mr. Berta’s absence, appears to have been the primary participant in the harassment of Ms. Strudwick. However, he was not the only employee involved in the abuse. Ms. Camilleri featured prominently in Ms. Strudwick’s despicable treatment. Sadly, other employees were made to participate in the harassment in at least one way, as the evidence indicates that Ms. Camilleri would demand that other workers call Ms. Strudwick, even though she could not answer. Ms. Camilleri would then stand over these employees to ensure they carried out her orders designed to further humiliate Ms. Strudwick. Fearful of themselves becoming the target of Mr. Hoffman and Ms. Camilleri’s ire, the other employees began avoiding Ms. Strudwick.

Thus not only did a managing employee participate in the harassment, he failed to address the harassment perpetrated by another employee. The result was a highly poisoned work environment.

As to the objective seriousness of the conduct, as previously described, Applied Consumer’s conduct was not appropriate. Applied Consumer refused every one of Ms. Strudwick’s requests for accommodation, even those she offered to pay for herself. It then took steps to exacerbate the impact of her deafness on her ability to perform her job to force her to resign. When that did not work, the company fired her for a frivolous and particularly offensive reason and in a manner intended to cause maximum embarrassment.  Ms. Strudwick suffered humiliation and the loss of self-respect, dignity and confidence as a direct result of Applied Consumer’s conduct.

The motion judge held that Applied Consumer’s misconduct was deliberate. It was designed to force Ms. Strudwick to quit her job. Furthermore, the abuse persisted for six months prior to her dismissal that the company attempted to justify on the inane and insulting basis that she misbehaved at the Toastmasters’ event.

A psychiatrist diagnosed Ms. Strudwick as having an adjustment disorder with mixed anxiety and depressed mood as a result of the manner in which Applied Consumer treated her. To address these afflictions, Ms. Strudwick has been forced to pay for extensive cognitive behavioural therapy.

Ms. Strudwick commenced this action by statement of claim issued in January 2012. In her pleading she claimed specific amounts under various categories: damages for wrongful dismissal; restitution under s. 46.1 of the Ontario Human Rights Code, general damages for breach of good faith; punitive damages; and exemplary damages. The total amount claimed was $240,000 plus an unquantified request for damages associated with her loss of UI benefits during the notice period.

Applied Consumer did not deliver a statement of defence and was noted in default. The company moved to set aside the noting in default. In his March 10, 2014 reasons for dismissing the motion, Spence J. of the Superior Court of Justice described Applied Consumer’s excuse for not defending as “clutching at trivialities” and concluded that Applied Consumer’s conduct revealed a litigant “who [had] no real interest in going to trial but simply [wished] to delay for as long as possible”. This court dismissed Applied Consumer’s appeal from Spence’s decision, saying that the motion judge’s characterization of the company’s conduct spoke volumes about its overall attitude toward the defence. Applied Consumer sought leave to appeal this court’s decision to the Supreme Court however, leave was denied.

 Prior to this appeal, as a result of the motion judge’s judgment of almost $114,000 and the $40,000 cost award, in addition to the cost orders associated with Applied Consumer’s failed efforts to cure its default in defending the action, the company owed Ms. Strudwick close to $180,000, not including the costs ultimately ordered by the Supreme Court.

After the appeal and cross-appeal were launched, Ms. Strudwick, then on social assistance, moved to lift the automatic stay of the enforcement of the judgment. Applied Consumer, asserting financial difficulties, argued that it be allowed to pay the amount it owed, in instalments.

This endorsement lifting the stay, Miller J.A. made the following observations. There was no evidence in support of Applied Consumer’s assertion of financial hardship. Applied Consumer had not “made a single voluntary payment” to Ms. Strudwick and she had therefore been forced to execute on the various cost orders in her favour. And, the motion to lift the stay was necessary only because of the “unreasonable position” taken by Applied Consumer.

The primary issue in the appeal is whether the trial judge erred in his assessment of damages within the various categories set out above. However, a preliminary issue had to be addressed and that was the fact that, on appeal, Ms. Strudwick was seeking damages significantly in excess of the amount claimed in her statement of claim.

On appeal, Ms. Strudwick sought damages totalling $1,019,384.80. Applied Consumer contended that the aggregate amount was limited by the amount claimed in the statement of claim of $240,000 plus an amount to compensate Ms. Strudwick for the loss of collateral benefits. In response to a question from the panel of judges, counsel for Applied Consumer acknowledged that his client would suffer no prejudice if any award this court may order under a particular head of damage exceeded the amount claimed under that head, provided the overall damages awarded did not exceed the total amount claimed in the statement of claim. Counsel left any such adjustment in the amount ordered under a particular head of damage .in the court’s hands.

Ms. Strudwick at no point prior to the hearing of the appeal sought to amend her claim to increase the amount of damages requested. This issue was addressed in oral argument by both counsel. Counsel for Applied Consumer advised the court that during a previous hearing in the lower court, counsel for Ms. Strudwick informed the court that he did not intend to seek to amend the statement of claim to increase the damages as such a move would re-open pleadings, giving Applied Consumer to defend the action. Counsel for Ms. Strudwick then indicated to this court that he was moving to amend the pleadings. However, no motion record was ever filed with this court, nor was any notice given to Applied Consumer of any such motion. The matter went no further.

I am convinced that the counsel for Ms. Strudwick was working on a contingency basis and he would get far more if the settlement was $1,019,384.80 instead of $240,000. Rather than risk getting a lessor award if the defendant firm could then file a defence, he decided to let the matter remain as it was.

In any case, the Court of Appeal doesn’t have jurisdiction to award damages that exceed the amount claimed in the statement of claim; namely, $240,000 plus the unquantified amount to compensate Ms. Strudwick for the benefits she lost during the period of reasonable notice.                             

Determining the period of reasonable notice is an art not a science. In each case, trial judges must weigh and balance a catalogue of relevant factors. No two cases are identical; and, ordinarily, there is no one "right" figure for reasonable notice. Instead, most cases yield a range of reasonableness. Therefore, a trial judge's determination of the period of reasonable notice is entitled to deference from an appellate court. An appeal court is not justified in interfering unless the figure arrived at by the trial judge is outside an acceptable range or unless, in arriving at the figure, the trial judge erred in principle or made an unreasonable finding of fact. If the trial judge erred in principle, an appellate court may substitute its own figure. But it should do so sparingly if the trial judge's award is within an acceptable range despite the error in principle.

The purpose of an award of damages for wrongful dismissal is to give the employee what she needs to support herself until she finds a new job. That risk has to be understood as meaning what she reasonably needs in the circumstances. Absent a fixed term contract, the risk of an employer’s having to pay an amount calculated with respect to that purpose is limited by the fact that, both generally and in this case, an employer does not guarantee employment to retirement.  Ms. Strudwick is entitled to pay and related benefits until she turns 65 and retires.

A contracting party assumes certain risks in making a contract. These risks are generally fixed when the contract is made. In the case of an employment contract, the risk the employer assumes is that, if an employee is dismissed without notice or cause, the employer must pay what it would have had to pay the employee during the period of notice. In an employment situation, the period may change as time goes by so that the actual size of the payment the employer must make cannot be known until the event occurs. Even then, the initial assumption of risk does not change: only the calculation of the consequences of the risk changes over time.                  

Applied Consumer accepted the risk that, if it dismissed Ms. Strudwick without notice or cause, it would have to pay her an amount fixed in accordance with t factors relevant at the time of dismissal. It did not accept, and cannot be held to have accepted, the risk that, in dismissing a 56-year-old woman, it would have to pay her until she retired. Put another way, it cannot be the law that Applied Consumer could not have dismissed Ms. Strudwick with notice but had to employ her until she reached the age of 65.

In cases where aggravated damages are awarded, no extension of the notice period is to be used to determine the proper amount to be paid. The amount is to be fixed according to the same principles and in the same way as in all other cases dealing with moral damages. Thus, if the employee can prove that the manner of dismissal caused mental distress that was in the contemplation of the parties, those damages will be awarded not through an arbitrary extension of the notice period, but through an award that reflects the actual damages.

 In the immediate lead-up to her dismissal, Ms. Strudwick was confronted in front of an estimated 13 other employees, yelled at and called a “goddamned fool”. She was then informed of her termination for a senseless reason. Paperwork had been prepared by the company that was designed to deprive her of various legal rights. When she would not sign, she was not given money the company then owed her. She was further humiliated by having to gather her belongings and leave under the stares of co-workers. The abuse did not cease after termination. Government intervention was needed before Applied Consumer gave Ms. Strudwick the pay it owed her at the time of dismissal.  Then the company tendered a record of employment that delayed Ms. Strudwick’s entitlement to receive employment insurance.

That firm’s conduct justified the award of aggravated damages Ms. Strudwick was awarded $61,599.82  in aggravated damages.

Punitive damages are recoverable provided the defendant’s conduct gives rise to the claim that the defendant committed an actionable wrong. Courts should only resort to punitive damages in exceptional cases. The conduct of the defendant merits punitive damages awards if the defendant’s conduct was  “harsh, vindictive, reprehensible and malicious”, as well as “extreme in its nature and such that by any reasonable standard, it is deserving of full condemnation and punishment. It is awarded to the defendant for the purposes of denunciation, deterrence and retribution.

Ms. Strudwick was awarded $55,000 in punitive damages.

Justice Gloria Epstine, writing the decision for the two other members of the court ruled;

“For these reasons, I would allow the appeal, set aside the judgment and substitute a judgment in the amount of $246,049.92. I would dismiss Applied Consumer’s application for leave to appeal costs. Further to my review of the parties’ costs submissions, I would award Ms. Strudwick her costs of this appeal in the amount of $20,000 inclusive of disbursements and applicable taxes.”

Mr. Hoffman was fired. Needless to say, he wouldn’t be given a favourable reference. I don’t know what happened to Ms. Camilleri but if the firm she works for has any consideration for its staff, they will make sure that she no longer works in their firm as a supervisor. 

No comments: