Trial court found harassment of RCMP employee by managers to be egregious enough to warrant separate damages, but appeal court found no need for ‘novel legal remedy’
When an employee suffers mental distress from harassment at work, that harassment is often seen as serious enough to warrant damages relating to wrongful or constructive dismissal. But in a recent Ontario case, an Ontario worker tried to take these damages to the next level by establishing a freestanding tort of harassment stemming from an intention to harm him. The worker was initially successful at the trial court level, but he was defeated at the next level.
In Merrifield v. Canada (Attorney General), the Ontario Court of Appeal (ONCA) affirmed that there is no freestanding tort of harassment in Ontario. Interestingly, the ONCA did not eliminate the possibility of a tort of harassment, but it noted that this was not the appropriate case to establish this tort.
The employee in this case had been a member of the Royal Canadian Mounted Police (RCMP) since 1998. He claimed that after he ran for the nomination to be the federal Progressive Conservative Party candidate in Barrie, his managers bullied him, causing damage to his reputation and his professional career, in addition to severe emotional distress. This alleged harassment occurred over a seven-year period. The employee sued the RCMP and his superiors for harassment and intentional infliction of mental distress.
Trial decision
The Ontario Superior Court (ONSC) found that the employee had suffered from post-traumatic stress disorder and depression due to the RCMP’s treatment of him. The ONSC also outlined a four-part test to establish a claim for damages for harassment, which the ONSC ultimately determined the employee had satisfied in this case.
In reaching this conclusion, the ONSC posed the following four questions as the basis for determining whether or not the tort of harassment had been made out:
• Was the conduct of the managers toward [the employee] outrageous?
• Did the managers intend to cause emotional stress or did they have a reckless disregard for causing [the employee] to suffer from emotional stress?
• Did [the employee] suffer from severe or extreme emotional distress?
• Was the outrageous conduct of the managers the actual and proximate cause of the emotional distress?
Court of Appeal decision
The ONCA allowed the employer’s appeal and found that the trial judge had erred in recognizing a new common law tort of harassment. The court determined that there was no basis upon which it could establish a new tort of harassment — either in existing Canadian legal authority, foreign judicial authority or academic authority.
In acknowledging that this case was the first case in which the court had to consider the question of whether there is a tort of harassment, the ONCA expressed concern about efforts to change the law through the courts rather than the legislature. The ONCA stressed that changes in the common law and/or the recognition of new torts, such as the tort of intrusion upon seclusion established in its 2012 decision of Jones v. Tsige, must be made incrementally.
The ONCA also distinguished this case from Jones, writing that this was not a case that “cr[ied] out for the creation of a novel legal remedy” and the tort of intentional infliction of mental suffering could be used as a potential remedy. However, despite the suggestion that the tort of intentional infliction of mental suffering could apply to cases such as these, the ONCA ultimately held that the trial judge erred in ruling that the employee had satisfied the criteria for intentional infliction of mental suffering, nor would he have satisfied the test for the tort of harassment as laid out by the trial judge, since he did not demonstrate a causal connection between the alleged harm and the employer’s conduct.
Takeaways for employers
Despite the ONCA’s findings here concerning the existence of a common law tort of harassment, employers do have an obligation to provide their workers with a harassment-free workplace under both human rights and occupational health and safety legislation. While the employee in this case was ultimately unsuccessful at appeal, the question of whether a tort of harassment should be established wasn’t necessarily settled for good. However, on Sept. 19, 2019, the SCC denied the employee’s appeal of the ONCA’s verdict.
Regardless of the finality of the SCC’s decision to refuse the employee’s appeal, employers should take harassment allegations seriously and seek to address them promptly and appropriately. Even without a common law tort of harassment, employers can face serious legal liability from workplace harassment.
For more information see:
• Merrifield v. Canada (Attorney General), 2019 ONCA 205 (Ont. C.A.).
• Jones v. Tsige, 2012 ONCA 32 (Ont. C.A.).
Please note this article is for information purposes only and is not intended to constitute legal advice.
