Ontario Court of Appeal: No Independent Tort of Harassment … Yet
Merrifield v The Attorney General, 2019 ONCA 205, represents the first case in which a Canadian appellate court has considered whether a common law tort of harassment exists. In its decision released last week, the Ontario Court of Appeal declined to recognize an independent and new tort of harassment in Ontario. Indeed, Merrifield may provide guidance to Alberta courts, which have recently held that the law surrounding the tort of harassment is not fully settled.
The Plaintiff, a Royal Canadian Mounted Police member, brought a civil claim alleging harassment and bullying from his superiors between 2005 and 2012. Specifically, the Plaintiff alleged that following the discovery of his participation in a nomination meeting for the Conservative Party in his riding, the Plaintiff’s superiors made unjustified and unwarranted managerial decisions about him based on unfounded allegations. Ultimately, the Plaintiff alleged that he was investigated and transferred, his reputation was damaged, his career was set back, and he experienced emotional distress as a result.
After a lengthy trial, the trial judge of the Ontario Superior Court recognized a new freestanding tort of harassment and concluded many managerial decisions involving the Plaintiff constituted harassment and intentional infliction of mental suffering. The trial judge awarded $100,000 in general damages, $41,000 in special damages and $825,000 in legal costs. The Attorney General of Canada appealed the trial level decision to the Ontario Court of Appeal.
The Ontario Court of Appeal (“ONCA”) overturned the lower court’s decision and concluded there is currently no independent tort of harassment in Ontario. The ONCA held that case law does not support the existence of a tort of harassment at present. The ONCA declined to establish a new tort, stating that the creation of a new tort is not an exercise of “judicial discretion”; rather, the legislature is best situated to effect such a change. The Court was not presented with any Canadian or international jurisprudence to justify the creation of a new tort nor was the Court presented with a compelling policy reason to recognize a new tort of harassment. Additionally, the Court stated that “[t]his is not a case whose facts cry out for the creation of a novel legal remedy”. Further, the ONCA concluded that there was limited rationale for creating a new tort given the existence of the tort of intentional infliction of mental suffering. In other words, the Plaintiff already had a cause of action for the alleged conduct by advancing a claim for intentional infliction of mental suffering.
Lastly, the ONCA found the trial judge erred in finding that the tort of intentional infliction of mental suffering was established on the facts of this case. The Court highlighted the trial judge’s palpable and overriding errors of fact-finding, in particular, “ignoring relevant evidence, considering irrelevant matters, and making findings of fact that are clearly wrong.” These errors precluded the finding that the tort of intentional infliction of mental suffering was established.
While the current state of the law does not conclusively recognize the tort of harassment, in the employment context or otherwise, we may see Canadian courts recognize a harassment tort in the future. The ONCA clearly left the door open for the creation of such a tort when it stated “we do not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts, we conclude that Merrifield has presented no compelling reason to recognize a new tort of harassment in this case [emphasis added].” At present, employers do not have to defend against an action in tort for harassment; however, employers continue to have obligations to ensure a harassment-free workplace pursuant to human rights and occupational health and safety legislation.
Merrifield also serves as a reminder that an employer can be liable for significant damages for mental distress under the tort of intentional infliction of mental suffering. Accordingly, the risk of such awards underscores the importance of proper policies, training, investigation and management relating to harassment, bullying or other misconduct.
Contact one of our experienced lawyers in our Labour and Employment Group for more information about how to prevent and respond to allegations of harassment or bullying in your organization.