In the recent decision of Merrifield v. Canada (Attorney General), 2019 ONCA 205, the Ontario Court of Appeal (“ONCA”) overturned a lower court decision which had recognized a freestanding “tort of harassment.” The ONCA stated that Canadian legal authority did not support the recognition of the tort and that there were existing legal remedies to redress harassment, such as the tort of intentional infliction of mental suffering (“IIMS”).
In early 2017, the plaintiff, a junior constable of the Royal Canadian Mounted Police, brought an action alleging that he had been harassed and bullied by his superiors. The trial judge recognized a tort of harassment and found that many of the managerial decisions in relation to the plaintiff constituted harassment under the tort. The trial judge also found the defendants liable for IIMS. The plaintiff was awarded $100,000 in general damages, $41,000 in special damages, and $825,000 in costs.
On appeal, the ONCA set the decision aside, concluding that the trial judge: erred by recognizing a tort of harassment; erred in applying the test for IIMS; and made palpable and overriding errors in her fact-finding.
Legal Status of the Tort of Harassment
The case law has been divided on whether the tort of harassment has been established as a civil cause of action in Canada. Some cases were decided on the assumption that such a tort does exist in Canada, whereas other cases have specifically denied the existence of the tort.
Generally speaking, courts have been reluctant to recognize new causes of action in tort, but it has been held that new torts can be created through the re-interpretation of precedent, the extension of an existing cause of action, or the recognition of a new interest that warrants protection under the civil law.
Interestingly, while the ONCA refused to recognize a tort of harassment in the case before it, it made clear that it was not foreclosing the possibility that the tort might apply in other cases.
Comparison to Intentional Infliction of Mental Distress
In Ontario, plaintiffs who have suffered harassment in the workplace have more commonly relied on the tort of IIMS, which requires the plaintiff to prove the following:
- The defendant’s conduct was flagrant and outrageous;
- The defendant’s conduct was calculated to harm the plaintiff; and
- The defendant’s conduct caused the plaintiff to suffer a visible and provable illness.
In contrast, the proposed tort of harassment would require the plaintiff to prove:
- The defendant’s conduct was outrageous;
- The defendant intended to cause emotional stress or had a reckless disregard for causing the plaintiff to suffer from emotional distress;
- The plaintiff suffered from severe or extreme emotional distress; and
- The defendant’s outrageous conduct was the actual or proximate cause of the emotional distress.
The ONCA noted that while the elements of the proposed tort are similar to those of IIMS, the latter is more onerous, as it is an intentional tort, whereas the former would operate as a negligence-based tort. In other words, IIMS requires “an intention to cause the kind of harm that occurred or knowledge that it was almost certain to occur”, whereas the proposed tort of harassment would require “either intention or objectively-defined reckless disregard.”
Takeaways for Employers
This is a welcome decision for employers, as it means that employees seeking to sue in tort for harassment will have to meet the more onerous test for IIMS. That said, employers should ensure they continue taking reasonable steps to prevent harassment (including sexual harassment) in the workplace. Employers should:
- Ensure that they provide appropriate training on harassment;
- Maintain appropriate workplace harassment policies;
- Investigate any complaints or incidents of harassment; and
- Otherwise comply with applicable human rights and occupational health and safety legislation.
We will continue to monitor legal developments relating to the tort of harassment and will report any updates.