Keays v. Honda Canada: The SCC Says Employer Intimidation Is Just Fine!

The Supreme Court’s recent decision in Keays v. Honda Canada, 2008 SCC 39, (summarized by Solomon Lam here) was a major victory for employers everywhere. In reducing both aggravated and punitive damages to zero, the Supreme Court of Canada has effectively deemed that Honda’s conduct, while harmful, was not egregiously harmful.

It is worth remembering the facts at hand that led the lower courts to find aggravated damages as prescribed in the Wallace v. United Grain Growers of Canada, [1997] 3 S.C.R. 701. Mr. Keays, acting in good faith, received a diagnosis of chronic fatigue syndrome (CFS). Honda, growing aggravated with Mr. Keays’ absences from work for medical reasons, consulted with two other doctors, and in their letter of March 28th to Mr. Keays asserted “[b]oth doctors advised us that they could find no diagnosis indicating that you are disabled from working.”

Justice Bastarache, at p. 39, explains that although Dr. Affoo did not disagree with the diagnosis of CFS, he still felt that working would be beneficial for Mr. Keays’ health. At paragraph 40, Justice Bastarache further explains that Dr. Brennan, the second of these two doctors, communicated to Honda that he was unable to diagnose Keays with CFS without first examining him. As such, Justice Bastarache concludes that

[t]here is nothing misleading or false with Honda’s assertion that both doctors advised that they could find no diagnosis that would bar Keays from working. Dr. Affoo clearly stated that he thought it would be good for Keays to work, and Dr. Brennan clearly could find no diagnosis of CFS without first meeting Keays. Honda was simply relaying the information it received from its experts to Keays. Given this evidence, I do not see how the trial judge could have concluded that Honda was trying to intimidate Keays by twisting the positions of the physicians.

This is almost a deliberately obtuse reading of the facts. While it is technically true that Honda was only repeating the facts at hand, realistically, what Honda did in its letter was conflate Dr. Affoo’s belief in the potential therapeutic value of work with Dr. Brennan’s inability to diagnose CFS and then use stern wording to imply that Mr. Keays was either mistaken or lying about his illness. This reading was the basis for the punitive damages’ judgments passed down by the lower courts, and the principle was that Honda abused its power in its relationship with Mr. Keays as his employer. Consider the language used in paragraph 4 of Honda’s letter to Mr. Keays:

When we met on March 21, 2000, we advised you that we would no longer accept that you have a disability requiring you to be absent. Dr. Brennan and Dr. Affoo both believe that you should be attending work on a regular basis.

Justice Bastarache, writing for the SCC, contends that there is nothing “misleading or false” about this statement, which in turn removes the justification for aggravated or punitive damages. But that statement clearly implies that Dr. Affoo and Dr. Brennan both believed that Mr. Keays had no disability; the way the paragraph is constructed leads the reader to accept that Honda’s reasoning for its decision (first sentence) is the expert opinion of the doctors (second sentence). This is, of course, flatly untrue. Dr. Affoo’s testimony made it obvious that he concurred with the diagnosis of CFS, and Dr. Brennan was in no place to determine that Mr. Keays was not suffering from CFS.

Taken in context, one can clearly see that Honda was trying to intimidate Mr. Keays, implying that he was either mistaken or dishonest about his condition. (When someone offers you the choice of being either ignorant or a liar, it’s already a lose-lose situation.) That is the root of Mr. Keays’ argument for aggravated damages, but Justice Bastarache’s decision nitpicks at technicalities.

Justice Bastarache points out that Dr. Brennan, Honda’s handpicked doctor, relied on the criteria outlined by the Centre for Disease Control in diagnosing CFS. However, he offers no comment on Dr. Brennan’s belief that CFS only exists as a genuine medical condition in “very limited circumstances,” which clearly suggests that Dr. Brennan thinks the majority of CFS cases stem from incorrect diagnosis. Justice Bastarache does not explain why the Centre for Disease Control should be a pre-eminent authority in Canadian jurisdictions either, particularly when Health Canada had already recognized CFS as a serious condition at the time and when Alberta courts had already ruled in 1998 (here) that CFS was a genuine medical condition.

In short, Justice Bastarache’s decision completely dismisses the tone of the letter, the antagonizing situation around its creation, and the fact that Honda Canada, very patronizingly, felt the need to get independent medical analysis, from not one, but two handpicked doctors – suggesting that they believed Mr. Keays was being dishonest with them from the start of this affair. The fact that they were unwilling to advertise that – is furthermore, wholly ignored. Their use of half-truths is the worst sort of legal weaseling that gives the profession a bad name; technically true but nonetheless designed to insult, hurt and inflame. For this, Honda Canada have been given a pass by the Supreme Court of Canada. And that’s just wrong.