But this does not leave employees without options when it comes to pursuing damages for this type of unlawful conduct
By Brittany A. Taylor
In early 2017, the Ontario Superior Court of Justice created waves throughout the employment law bar when it confirmed that “harassment” was a distinct, free-standing tort in Merrifield v Canada (Attorney General).
However, two years later, the Ontario Court of Appeal has now overturned the trial decision and firmly put the brakes on this fledgling tort.
The employee, Peter Merrifield, alleged that over a period of more than seven years, his superiors in the RCMP bullied and harassed him, causing damage to his reputation and career, as well as intense emotional distress, including depression. This culminated in Merrifield leaving his employment and pursuing an action against the RCMP in which he sought damages for, among other things, harassment, intentional infliction of mental suffering, loss of income and general damages.
The court agreed with Merrifield that the conduct of the RCMP was unlawful. However, rather than rely on existing grounds to award him damages, the Ontario Superior Court of Justice proceeded to recognize an independent right of action for individuals who are victims of harassment.
Based on Merrifield’s submissions, the court developed a four-part test to establish this newly developed tort:
- Was the conduct of the employer toward the employee outrageous?
- Did the employer intend to cause emotional distress or did they have a reckless disregard for causing the employee to suffer from emotional distress?
- Did the employee suffer from severe or extreme emotional distress?
- Was the outrageous conduct of the employer the actual and proximate cause of the emotional distress?
The court found that all four elements were satisfied in this case. As a result, it ordered the RCMP to pay Merrifield $100,000 in general damages and $41,000 in special damages. The RCMP was also ordered to pay his costs in the amount of $825,000.
The decision in Merrifield was hugely significant. It meant that, for the first time, individuals who believed they were victims of harassment (including employees) could successfully pursue claims for damages without having to meet the fairly strict criteria necessary to prove intentional infliction of mental suffering.
To establish this tort, employees must prove that the employer’s conduct was: (a) flagrant and outrageous, (b) calculated to harm the plaintiff and (c) it must have caused the plaintiff to suffer a visible and provable illness.
Interestingly, in this case, the court actually found that Merrifield had also successfully made out the tort of intentional infliction of mental suffering. In other words, it was not necessary for the court to create the tort of harassment in order to award damages to Merrifield.
The Ontario Court of Appeal set aside the trial judgment entirely, noting that the trial judge had “erred by recognizing a tort of harassment, erred in applying the test for the intentional infliction of mental suffering, and made palpable and overriding errors in much of her fact-finding.”
The Court of Appeal commented generally on the nature of changes to the common law, noting that the judiciary must be cautious when assessing whether change is necessary and whether it is best suited to come about through legal decisions as opposed to directly from the legislature.
The court went on to note that there was no legal authority supporting the recognition of the tort of harassment. In particular, none of the case law identified by the trial judge supported the existence of the tort or confirmed what the test would be to establish the tort. Rather, the cases “assume rather than establish the existence of the tort. They are not authority for recognizing the existence of a tort of harassment in Ontario, still less for establishing either a new tort or its requisite elements”.
Further, the court held there was no basis for recognizing a new tort of harassment at this time, noting that it had not been provided with any foreign judicial authority supporting the recognition of the tort, nor any academic authority or compelling policy rationale to do so. In addition, this was not a case “whose facts cry out for the creation of a novel legal remedy”.
The Court of Appeal distinguished the decisions in Bhasin v Hrynew, where the Supreme Court of Canada created a duty of honest contractual performance, and in Jones v Tsige, where the Ontario Court of Appeal recognized the existence of a tort of intrusion upon seclusion. In Bhasin, the Supreme Court proceeded on the basis that the principle of good faith in contractual performance already existed in Canada.
As a result, creation of the new common law duty was simply an “incremental step” which “responded to societal needs and vindicated the reasonable expectations of commercial parties”. Similarly, in Jones, the Court of Appeal “confirmed” the existence of the tort of intrusion upon seclusion rather than “creating” it, based on existing case law which was supportive of the existence of the tort and developments in provincial legislation which established a right to privacy, as well as a need for the tort based on societal (and technological) change.
Furthermore, in that case, the facts were so egregious that they “cried out” for a remedy that would not have been available otherwise.
In that regard, the Court of Appeal noted that there are legal remedies available already to deal with conduct which constitutes harassment, including the tort of intentional infliction of mental suffering. As a result, there was no basis on which to recognize a less onerous tort.
It is not clear at this time whether Merrifield intends to seek leave to appeal this decision to the Supreme Court of Canada, which has the power to breathe life back into the independent tort of harassment should they choose.
For now, employees who wish to pursue damages against their employer arising from harassment will have to rely on other causes of action, such as breach of the duty of good faith or intentional infliction of mental suffering.
Likewise, while this decision is good news for employers, they should recognize that the elimination of the tort of harassment does not leave employees without options when it comes to pursuing damages for this type of unlawful conduct.
Brittany Taylor is a senior associate at Rudner Law in Toronto.