Ontario Says Goodbye to the Short-Lived Tort of Harassment

Written by on May 7, 2019 in Employment Law Blog, Focus on Canadian Cases
Man with head in his hands


Recently, Ontario’s highest court was asked to determine whether a common law tort of harassment exists. In Merrifield v. Canada (Attorney General), an important decision released in March, the Court of Appeal affirmed that there is no such tort at this time.

Peter Merrifield was an employee of the Royal Canadian Mounted Police. A junior RCMP Constable in 2005, Merrifield was promoted to Corporal in 2009 and then to Sergeant in 2014.

In June 2007, Merrifield brought an action against the RCMP seeking damages for intentional infliction of mental suffering due to alleged managerial bullying and harassment.

The alleged incidents of harassment included the RCMP advising Merrifield that 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 Merrifield of his obligation to comply with RCMP policies regarding media appearances after he appeared on multiple radio shows as a “terrorism consultant”; and investigating Merrifield to determine if his credit card use had contravened the RCMP’s Code of Conduct. Merrifield alleged that his working relationship with his superiors deteriorated to the point that he experienced significant levels of anxiety and was forced to take a medical leave of absence.

After a lengthy trial, the judge found in Merrifield’s favour.

Justice Vallee recognized the existence of an independent common law tort of harassment and held that the RCMP’s management had harassed Merrifield within the meaning of the new tort. She also found that there had been intentional infliction of mental suffering.

The trial judge awarded Merrifield $140,000 in general and special damages, plus $825,000 for the costs of the action.

In a unanimous decision, the Court of Appeal reversed this ruling, holding that there is no independent tort of harassment in Ontario.

In coming to its decision, the Court reflected on the recently established tort of intrusion upon seclusion. While that tort was recognized largely because of the emerging acceptance of claims for breach of privacy, the Court held that there was no such basis to establish a new tort of harassment. The Court noted that not only did the case law not support the recognition of a tort of harassment but, unlike the tort of intrusion upon seclusion, it was not the culmination of legal developments, was not supported by foreign judicial authority, and was not justified by a compelling policy rationale. Ultimately, the Court concluded that the facts of the case did not “cry out” for the creation of a new legal remedy.

The Court also pointed out that there are existing legal remedies available to address conduct that is alleged to constitute harassment, such as seeking damages under the tort of intentional infliction of mental suffering or, in appropriate cases, remedies through Ontario’s Human Rights Tribunal.

The Court of Appeal accordingly overturned the damages that were originally awarded to Merrifield.

While the Court declined to recognize a tort of harassment in this case, it did not rule out “the development of a properly conceived tort of harassment” that may apply in appropriate contexts. So the story is not over. It will be interesting to see if Merrifield will seek leave to appeal to the Supreme Court of Canada and, if he does, if the nation’s highest court will weigh in, and how. As always, we will keep you apprised of developments in the law.

Key Takeaways for Employers and Employees

Employers should not allow this decision to lull them into believing that they are free from liability in the event of claims involving workplace harassment. As discussed in the Court of Appeal’s decision, employees still have a number of potential remedies in the event of workplace harassment, including seeking damages for the tort of intentional infliction of mental suffering (which may include aggravated or punitive damages) and redress under the Ontario Human Rights Code if the harassing conduct can be connected to a prohibited ground of discrimination. Employees can also seek remedies under the Occupational Health and Safety Act if an employer fails to meet their obligation to conduct a reasonable investigation in response to a complaint of workplace harassment. An employee may also be entitled to Workplace Safety and Insurance Board benefits for work-related chronic mental stress injuries, which can arise in circumstances of workplace harassment.

Although the Court of Appeal determined that there is no tort of harassment in Ontario at this time, employers still have significant obligations with respect to preventing and addressing harassment. Employers are urged to promote a respectful and inclusive workplace culture, implement and enforce anti-harassment policies and practices, remain mindful of their ongoing statutory obligations to prevent harassment, and promptly address and investigate any allegations of harassment or bullying. Similarly, employees who are being harassed still have several remedies to pursue, even without a tort of harassment.

Minken Employment Lawyers is your source for expert advice and advocacy on today’s employment law issues. Whether you are an employer or an employee, we can help. Contact us to see how.

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Additional Harassment blogs:

New Legislation Alert – Bill C-65 designed to prevent workplace harassment and violence in federally regulated workplaces

Human Rights Tribunal Awards Substantial Damages for Workplace Harassment and Discrimination


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