Case In Point
No Tort of Harassment in Ontario
Date: March 21, 2019
In Merrifield v. Canada (Attorney General), the Ontario Court of Appeal found that a “tort of harassment” does not exist in Ontario.
The plaintiff/respondent was hired as a Constable in the Royal Canadian Mounted Police (RCMP) in 2005. He was promoted to Corporal in 2009 and then to Sergeant in 2014. In June 2007, he brought an action against the RCMP and several individual members of the RCMP (the individual claims were later discontinued) seeking damages for intentional infliction of mental suffering due to alleged managerial bullying and harassment. The alleged incidents of harassment included:
- advising the plaintiff he could not do political investigations as he had run for a riding nomination to be a federal Conservative candidate and was therefore in a conflict of interest
- reminding the plaintiff of his obligation to comply with RCMP policies regarding media appearances after appearing on multiple radio shows as a “terrorism consultant”
- investigating the plaintiff to determine if his credit card use had contravened the RCMP’s Code of Conduct.
In 2014, the trial judge found in favour of the plaintiff. She held that there existed a freestanding tort of harassment in Ontario law and that the RCMP’s management had harassed the plaintiff within the meaning of that new tort. She also found that there had been intentional infliction of mental suffering.
The Court of Appeal disagreed, stating the trial judge had committed numerous palpable and overriding errors in her application of legal tests and in findings of fact.
With respect to the new tort of harassment, the Court of Appeal cited the Supreme Court of Canada and referred to the “evolutionary” nature of the common law and its slow and incremental change. It noted, for example, that the courts had been careful in recognizing, rather than creating, the new tort of “intrusion upon seclusion” (Jones v. Tsige) and the “duty of honest contractual performance” in contract law (Bhasin v. Hrynew), both of which resulted from a culmination of many legal developments throughout Canada, in other common law jurisdictions or in academic writings. In this regard, the Court noted that in creating the tort, the trial judge had relied on four trial level decisions, none of which were authority for recognizing the tort of harassment.
The Court went on to note that there was no foreign judicial authority which recognized the new tort. Further, the facts of the case before it did not “cry out for the creation of a legal remedy, as in Tsige,” a case where the Court found that the law of Ontario would be “sadly deficient” if it would have sent the plaintiff in that case “away without a legal remedy.”
The Court also found support for denying a tort of harassment in addressing the trial judge’s analysis of intentional infliction of mental suffering. It confirmed that this tort requires that the defendant’s conduct must (1) be flagrant and outrageous; (2) be calculated to harm the plaintiff; and (3) have caused the plaintiff to suffer a visible and provable illness.
The trial judge’s proposed elements for the tort of harassment were similar to the three elements of intentional infliction of mental suffering, but were simply less onerous. The Court of Appeal found that this was another reason not to find a tort of harassment, as there was no policy rationale for creating it when the tort of intentional infliction of mental suffering is already in existence. Moreover, it noted that the tort of harassment as stated by the trial judge would have been a negligence-based tort, but that previous case law established that negligence cannot be used to establish a claim for mental suffering in the employment context.
On the facts, the Court found that the RCMP’s conduct had not been “flagrant and outrageous,” as required by the first part of the intentional infliction of mental suffering test. Accordingly, the appeal was allowed in its entirety.
This decision confirms that the “tort of harassment” does not exist in Ontario and, where appropriate, claims for mental suffering in the employment context should still be framed as “intentional infliction of mental suffering.” It also confirms that the reasonable exercise of managerial authority is unlikely to create liability in this respect.
Regardless of its outcome, the case serves as another reminder that employers should always be mindful of their ongoing statutory obligations to prevent harassment in the workplace and to proactively deal with harassment should it arise.
Editor’s Note: On September 18, 2019, the Supreme Court of Canada denied leave to appeal from this decision.
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