In 2017, the Ontario Superior Court of Justice released a decision, Merrifield v. The Attorney General, which had the effect of creating a new tort of harassment in Ontario and generating a great deal of buzz among employment law professionals in the province. Two years later, the Ontario Court of Appeal has now overturned that decision, concluding that the tort of harassment has yet to be established by any provincial jurisprudence or legislative process.  

RCMP Officer Claims Harassment at Work Following Announcement of Political Run

The plaintiff in the case, an officer with the Royal Canadian Mounted Police, made the decision to run for political office during the course of his employment. Following this decision, he claimed to have endured harassment from his superiors for a number of years and cited his political aspirations as the primary reason. He claimed the behaviour manifested in various ways including being made the subject of warrantless investigations, being discriminated against with respect to career advancement, and outright bullying. He maintained that as a result of the harassment, he suffered prejudice in his career, damage to his reputation, and severe emotional distress. He eventually brought a claim against his employer for harassment, intentional infliction of emotional distress (“IIED”), loss of income, and general damages.

The Superior Court Decision

The Superior Court found in favour of the plaintiff with respect to the claim for harassment, relying on a series of earlier decisions cited by the plaintiff, which he claimed served to establish not only the tort of harassment itself but the elements required to prove it. Using these cases as a guide, the trial judge confirmed the existence of the tort of harassment and its requisite elements, which were set out as follows:

• The conduct of the defendant(s) was outrageous;
• The defendant(s) intended to cause emotional stress or had a reckless disregard for causing the plaintiff(s) to suffer from emotional stress;
• The plaintiff(s) suffered from severe or extreme emotional distress; and
• The outrageous conduct of the defendant(s) was the actual and proximate cause of the emotional distress.

The trial judge distinguished the tort of harassment from the similar and well-established tort of IIED by pointing out that the elements required to prove IIED were more onerous, noting that the behaviour of the defendant must be flagrant in addition to being outrageous. Further, a plaintiff claiming IIED must demonstrate that they suffered a visible and provable illness. In the case at hand, the trial judge found that the plaintiff had satisfied the criteria for both harassment and IIED, ultimately ordering his employer to pay him over $100,000 in damages.

Overturned on Appeal

On March 15, 2019, the Ontario Court of Appeal (“ONCA”) overturned the trial decision, noting that it was the first time an appellate court in Canada had been required to determine the existence of a tort of harassment. Ultimately, the court found that the trial judge had erred in recognizing the tort of harassment, and, in particular, erred in relying on the earlier case law to establish the creation of the tort or a set of requisite elements. The ONCA concluded that the precedents cited by the trial judge merely assumed the existence of the tort and could not be considered authority for creating the tort itself or its elements.

The plaintiff claimed that a new tort of harassment is necessary because harassment is now widely viewed as wrongful conduct, and because moral damages for infliction of emotional distress are only available upon termination of employment. He argued that the new tort was needed to fill a gap created by this fact, citing another case that was concerned with establishing mental injury in the context of a negligence action. The Court disagreed, noting that the cause of action, in that case, was negligence, and pointing out the fact that the ONCA had yet to allow negligence to form the basis for a claim in the employment context.

The ONCA went on to say that the facts of the case did not warrant a novel legal remedy such as the establishment of a new tort. The ONCA instead held that a claim for damages for mental suffering in the employment context can be brought under the existing tort of IIED, which has similar, yet more stringent, requisite elements.

An Experienced Employment Lawyer Can Help when Harassment Creates a Hostile Work Environment

The employment law team at Duncan, Linton LLP works with both employees and employers on employment law matters. We give timely and practical advice to employees while also helping employers to minimize their risk and ensure that all legal obligations owed to their employees are met. Please call us at 519-886-3340 or reach us online to talk today.