Negligent infliction of mental suffering

Today’s decision in Amaral v. Canadian Musical Reproduction Rights Agency Limited, 2009 ONCA 399 leaves open, again, whether there is an independent tort of negligent infliction of mental suffering . The Court writes:

[22]          The trial judge said she had not been referred to any case in which the court has found negligent infliction of mental suffering as an independent actionable tort.  In the cases to which reference was made where courts found that an employer owes a duty to employees to treat them fairly, with civility, decency, respect and dignity, the breach of that duty is a breach of the employment contract exposing the employer to a claim for constructive dismissal.  All of the cases upon which the appellant relies were cases which included claims for wrongful dismissal, as was the case of Piresferreira v. Ayotte (2008), CanLII 67418 ( Ont. S.C.)  released after the judgment in the case at bar. There is no case cited before this court which holds that an employee has a free-standing cause of action, in tort, for negligent infliction of mental suffering against his or her employer absent any allegations of breach of the contract of employment between the two.

[23]          In this case it is not necessary to decide that issue.  For the purpose of this appeal I assume without deciding, that such a duty does exist in law.  Even so, in my view, the appellant cannot succeed in view of the factual findings made by the trial judge.