As we reported in our earlier post, in Merrifield v The Attorney General, 2017 ONSC 1333, the Ontario Superior Court allowed an employee’s claim against his employer and two superiors for the “tort of harassment” and awarded significant damages against the defendants as a consequence. In its decision released today, the Ontario Court of Appeal (“ONCA”) held that there is currently no independent tort of harassment in Ontario, overturning the lower court’s decision. However, the ONCA did not rule out “the development of a properly conceived tort of harassment” that may apply in appropriate contexts.

Key Takeaways

The ONCA has clarified that there is no tort of harassment; finding no support for the tort in earlier inconsistent lower court decisions. While employers will not have to defend against claims based on the tort of harassment for the time being, employees may still bring claims against employers and/or named individuals for alleged mental distress under the tort of intentional infliction of mental suffering (“IIMS”) (described below). Most importantly, pursuant to human rights and occupational health and safety legislation, employers continue to have an obligation to take steps to ensure their workplaces are free from harassment and to properly investigate and remedy harassment allegations.

Background

The Trial Decision

The plaintiff, a Royal Canadian Mounted Police member since 1998, brought a civil claim alleging that his superiors harassed and bullied him. The thrust of the plaintiff’s claim was that his superiors made unjustified and unwarranted decisions about him due to the fact that he sought nomination as a federal Progressive Conservative candidate in 2005 (the Liberals formed the government at the time). The plaintiff alleged that he was investigated and punitively transferred without merit, his reputation was tarnished, he suffered substantial career setbacks and underwent severe emotional distress. Until the time of the alleged harassment, the plaintiff had been instrumental in investigating national security concerns, including obtaining convictions in key prosecutions.

The trial judge recognized an independent tort of harassment and found that the plaintiff suffered harassment by his superiors as a result of many managerial decisions made concerning the plaintiff. In addition, the trial judge found the defendants were liable for IIMS. The plaintiff was awarded $100,000 in general damages, $41,000 in special damages, and $825,000 in costs.

The Attorney General of Canada appealed the trial level decision.

The ONCA Decision

The ONCA concluded that “authority does not support the existence of a tort of harassment” and declined to establish a new tort in the instant case for the following reasons:

  • The creation of a new tort is not a matter of “judicial discretion” and significant change may best be left to the legislature.
  • The Court was not presented with Canadian or foreign judicial authority supporting the recognition of a new tort of harassment, nor any academic authority justifying a compelling policy rationale for its recognition.
  • The facts of the case do not “cry out” for the creation of a novel legal remedy, as, for example, was the case in Jones v Tsige, 2012 ONCA 32, in which the Court recognized the new tort of intrusion upon seclusion.

The Court also determined that the tort should not be recognized because the plaintiff already had a means of redress for the alleged conduct. Specifically, the plaintiff could seek damages for mental suffering under the tort of IIMS. The Court compared the elements of the two torts and concluded that “plainly, the elements of the tort of harassment recognized by the trial judge are similar to, but less onerous than, the elements of IIMS.”

The trial judge had applied the following test for the tort of harassment:

(a) Was the conduct of the defendants toward the plaintiff outrageous?

(b) Did the defendants intend to cause emotional stress or did they have a reckless disregard for causing the plaintiff to suffer from emotional stress?

(c) Did the plaintiff suffer from severe or extreme emotional distress?

(d) Was the outrageous conduct of the defendants the actual and proximate cause of the emotional distress?

Whereas, under the three-part test for IIMS, a plaintiff must establish that the conduct is:

  1. flagrant and outrageous,
  2. calculated to produce harm, and
  3. results in visible and provable illness.

Significantly, the Court stated that it does not “foreclose the development of a properly conceived tort of harassment” that may apply in appropriate contexts, but simply finds that “Merrifield has presented no compelling reason to recognize a new tort of harassment in this case.” [emphasis added]

The ONCA found that the trial judge erred in recognizing the tort of harassment and in finding that the tort of IIMS was established. In particular, the Court highlighted the trial judge’s palpable and overriding errors of fact in her analysis, namely, “ignoring relevant evidence, considering irrelevant matters, and making findings of fact that are clearly wrong.” Even assuming a tort of harassment exists, the ONCA found these errors “preclude a conclusion that Merrifield was harassed.”

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Photo of Susan MacMillan Susan MacMillan

Susan MacMillan is a Professional Support Lawyer in the Employment & Compensation Group in Toronto. Susan is passionate about exploring new developments in Canadian and global employment law and their implications for employers. Prior to joining Baker McKenzie, Susan had a broad employment law practice at a full-service, national firm. She was also seconded to a Canadian chartered bank as Legal Counsel in the bank’s Employment Law Group. Susan holds an LL.M. from the University of Toronto where her thesis focused on the interaction between seniority rights and the duty to accommodate.

Photo of Shereen Aly Shereen Aly

Shereen Aly is an articling student at Baker McKenzie.