In a unanimous decision, the Ontario Court of Appeal has ruled that there is no tort of harassment in Ontario. In Merrifield v. Canada (Attorney General), the Court overturned the trial decision which had found that the tort did exist.
The facts of the underlying decision dealt with an RCMP officer who alleged he was subjected to years of mistreatment, transfers, and unfounded investigations as he made his way through the police service. The claim culminated in a 40 day trial wherein the plaintiff was awarded $100,000 in general damages, $41,000 in special damages, and $825,000 in costs of the action. In particular, the judge found that the freestanding tort of harassment had been established in Ontario.
The elements of the tort required:
- Was the conduct of the defendants towards the plaintiff outrageous?
- Did the defendants intent to cause emotional distress or did they have a reckless disregard for causing the plaintiff to suffer emotional distress?
- Did the plaintiff suffer from severe and extreme emotional distress?
- Was the outrageous conduct of the defendants the actual and proximate cause of the emotional distress?
In declining to recognize the tort, the Court disagreed that the existing case law supported the recognition of a new tort. They further distinguished this case from that of Jones v. Tsige, wherein the new tort of inclusion upon seclusion was recognized. In these circumstances, the case did not “call out” for a new tort because there were other remedies available to the plaintiff. In particular, the Court argued that the plaintiff could have relied upon the tort of intentional infliction of mental suffering.
The Court also addressed whether it had the capacity to “create” a new tort. The court held:
“To pose the question in this way is to suggest that the recognition of new torts is, in essence, a matter of judicial discretion – that the court can create a new tort anytime it considers it appropriate to do so. But that is not how the common law works, nor is it the way the common law should work.”
After declining to recognize the tort of harassment, the Court of Appeal turned to the elements of the tort of intentional infliction of mental suffering. This tort had similar requirements:
- Was the conduct flagrant and outrageous?
- Was the conduct calculated to harm the plaintiff?
- Did the conduct cause the plaintiff to suffer a visible and provable illness?
The Court found this test was not satisfied, in particular because the alleged conduct had not been “flagrant and outrageous”. At the core of their finding was the conclusion that the trial judge made several overriding factual errors that went the core of the decision making process.
Ultimately, the appeal was allowed and the trial decision was overturned.
So what does this mean for us?
Although the Court of Appeal determined there was no tort of harassment in Ontario, employers still have significant obligations regarding harassment and workplace investigations in Ontario. Employers who are aware of allegations of harassment, or who suspect harassment is taking place, are required to investigate and take action accordingly. Similarly, employees who feel they are subject to pervasive harassment or conduct that makes continuation in the workplace untenable have access to claims of constructive dismissal, claims under occupational health and safety acts, and the tort of intentional infliction of mental distress. Although the bar for the tort of intentional infliction of mental distress is quite high, it is still arguably available for clear cut cases.
The full decision of Merrifield v. Canada (Attorney General), 2019 ONCA 205, can be found here: http://canlii.ca/t/hz4fc
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