In 2017, the Ontario Superior Court of Justice caused somewhat of a stir in the employment law realm when it recognized a new freestanding tort of harassment.
The case involved RCMP constable Peter Merrifield, who claimed he suffered harassment and bullying while on the force from 2005 to 2012.
In allowing the action, trial court judge Mary Vallee found many of the managerial decisions Merrifield faced constituted harassment, along with being liable for intentional infliction of mental suffering. She also recognized the new tort.
As a result, Merrifield was awarded $100,000 in general damages, alongside $41,000 in special damages and $825,000 in costs of the action.
But that was wrong, according to the Court of Appeal for Ontario in a March 15, 2019, decision, noting the lower court erred in applying the test for mental suffering, made errors in fact-finding, and should not have recognized a tort of harassment.
The retraction is important for employers, according to Lisa Talbot, partner at Torys in Toronto.
“The Court of Appeal decision in Merrifield very clearly said that — as of today anyway — we do not have a tort of harassment in Ontario. It left open the possibility that there could be a finding that there is a tort of harassment in the future, but not on these facts.”
The Court of Appeal has confirmed that employees are not going to be given damages just for “harassment,” but acts that could also be seen to be harassing or bullying or inappropriately inform other areas of the law and other causes of action, said Simon Reis, an associate at Blaney McMurtry in Toronto.
“It’s in the Occupational (Health and) Safety Act; it’s in the human rights code. This is just about whether there is a freestanding common law tort of harassment.”
However, the law hasn’t yet changed in this area so the obligations that employers had before the Merrifield decision are still the same — both in tort and under statutory provisions, said Amanda Bertucci, an associate at Goodmans in Toronto.
“Under the Occupational Health and Safety Act, there are requirements about procedures that have to be put into place, the way that investigations are conducted. So there are statutory obligations that employers have to be aware of and abide by, regardless of the common law tort of harassment — whether it’s recognized or not.”
Creating a new tort
In making its decision, the appeal court first looked at what was required to recognize or establish an new tort.
“Common law change is evolutionary in nature: It proceeds slowly and incrementally, rather than quickly and dramatically,” said the appeal court, citing the 1989 decision Watkins v. Olafson.
The Court of Appeal really made clear that it’s not the role of the court to be determining that a new tort exists or creating a new tort, said Talbot.
“Rather, it’s the role of court to recognize, over a period of time, that a tort may now exist. So it sounds like a fine distinction, but it does make a difference.”
Courts are often reluctant to tread into the territory of what would be the legislature’s more defined roles, said Bertucci.
“The courts are hesitant to create new torts or create new common law provisions when there isn’t legislative grounding to do that already, and the Court of Appeal found there wasn’t. So I don’t think it’s entirely surprising for the court to delineate what they feel their jurisdiction is as compared to the legislature.”
The appeal court said really the court’s job “is more to recognize things that are already percolating and already in existence, and not to just create things from scratch, so to speak,” she said.
And in looking at the 2012 Jones v. Tsige, which introduced the intrusion upon seclusion tort, the appeal court said it was grounded in an emerging acceptance of claims for breach of privacy. The judge there carefully reviewed Ontario and Canadian case law, provincial legislation, academic scholarship, tort law in other countries along with social change.
“This is not a case whose facts cry out for the creation of a novel legal remedy, as in Tsige,” said the appeal court. “In this case, there are legal remedies available to redress conduct that is alleged to constitute harassment.”
The legislature has already occupied some of the field with respect to harassment, as seen with the Occupational Health and Safety Act, and the human rights code, said Reis.
“The Court of Appeal has sounded a warning to some of the lower courts that we need to be careful in recognizing new bases of civil liability and that the common law needs to develop in incremental steps with due regard for whether it’s appropriate to recognize a new cause of action,” he said.
While the appeal court said there was not sufficient precedential authority, said Reis, “I think what they were getting at is, right now, there’s no compelling reason to recognize this. The fact that the elements of this proposed tort of harassment were so similar to the elements of the pre-existing, well-established tort of intentional infliction of emotional suffering (IIMS), I think that that was a factor.”
The appeal court looked at the tort of IIMS and said it is well-established in Ontario and can be used as a basis for claiming damages for mental suffering in the employment context:
“Whereas IIMS requires flagrant and outrageous conduct, the proposed harassment tort would require only outrageous conduct. More significant, IIMS is an intentional tort, requiring an intention to cause the kind of harm that occurred or knowledge that it was almost certain to occur.”
If you look at the elements of the tort of harassment, it does seem to set a lower bar than what IIMS would require, said Reis.
“Conduct for harassment just needs to be outrageous, not also flagrant. And the proposed tort of harassment would require that the plaintiff suffered severe or extreme emotional distress and not a visible and provable illness.”
Harassment would have been more of a negligence-based tort, whereas IIMS has an element of intentionality to it, said Bertucci.
“The threshold’s a little bit higher because the three elements are that there has to be conduct that was flagrant and outrageous, calculated to produce harm, and which results in visible and provable illness to reach the threshold for IIMS — that’s a little bit higher than what the proposed tort of harassment would have looked like.”
The Court of Appeal noted the test set out by the lower court for harassment was really not substantially different from the test for IIMS, said Talbot.
“In other words, that there is under our existing law and under the existing head of damage, of intentional infliction of mental suffering, recourse for employees or others who want to look to the court.”
While Vallee looked at four cases in her 2017 decision, she erred in doing so, said the appeal court: “Taken as a whole, these cases confirm neither the existence of the tort, nor its elements.”
In the end, the appeal court said it did not “foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts” but Merrifield “has presented no compelling reason to recognize a new tort.”
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