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The Ontario Court of Appeal recently confirmed in Merrifield v. Canada (Attorney General) (“Merrifield”) that there is no freestanding tort of harassment. A tort is a civil wrong that can give rise to an action for damages against the wrongdoer. The Court of Appeal’s decision in Merrifield confirms that – at least in Ontario – harassment is not a civil wrong in and of itself; therefore, Mr. Merrifield could not sue his employer for damages in tort for the alleged workplace harassment. While the Court’s decision in Merrifield may be reassuring for employers, incidents of workplace harassment can still form the basis of other causes of action against employers and can result in significant damage awards.

Background 

Peter Merrifield was a sergeant with the RCMP. He sued the RCMP, claiming that his superiors harassed and bullied him. Mr. Merrifield, who was still a member of the RCMP when his case went to trial, sought damages for harassment, intentional inflection of mental suffering, loss of income and general damages. In support of his claims, Mr. Merrifield relied on a series of incidents, dating as far back as 2005. 

It all started when Mr. Merrifield’s superiors discovered that he sought the nomination to be the Conservative Party’s candidate in an upcoming federal election, without complying with RCMP regulations. The RCMP then transferred Mr. Merrifield out of the Threat Assessment Group unit, a unit responsible for protecting politicians, due to a potential conflict of interest. Soon afterwards, Mr. Merrifield appeared on a radio show as a “terrorism consultant”, which prompted RCMP management to issue him a memo reminding him of its policies on media appearances. Then, the RCMP refused to assign Mr. Merrifield to the Special Operations Centre and transferred him to another unit. A short time later, the RCMP investigated whether Mr. Merrifield’s use of his credit card violated the Code of Conduct. Mr. Merrifield claimed that the RCMP’s actions constituted harassment and intentional infliction of mental suffering. 

At trial, the judge recognized the existence of a new common law tort of harassment and ruled that the RCMP had committed both that tort and the similar tort of intentional infliction of mental suffering. Mr. Merrifield was awarded $100,000 in general damages and $41,000 in special damages for lost income. 

Court of Appeal’s Decision in Merrifield

The Court of Appeal overturned the trial judge’s decision, finding that the trial judge had erred when she recognized the newly conceived tort of harassment. In doing so, the Court of Appeal reiterated that the common law develops slowly and incrementally, and that current Canadian legal authority did not support the recognition of a tort of harassment. Further, this was not a case where the facts cried out for the creation of a novel legal remedy, as there were other legal remedies, including the tort of intentional infliction of mental suffering, available to address the behaviour that allegedly constituted harassment. 

While the Court of Appeal found that the facts of this case did not justify the creation of a new legal remedy, it did not foreclose the possibility of recognizing a tort of harassment in the future. 

Implications for Employers

Although the Court of Appeal held that there is no tort of harassment, harassing behaviours may give rise to a claim in tort for intentional infliction of mental suffering, where the conduct is: 1) flagrant and outrageous; 2) calculated to harm the plaintiff; and 3) causes the plaintiff to suffer a visible and provable illness. In Merrifield, the Court of Appeal found that Mr. Merrifield had failed to establish the required elements for the tort of intentional infliction of mental distress. However, in circumstances where the elements are established, damages may be awarded to compensate the victim for the harm suffered and to punish the wrongdoer. For example, in Boucher v. Wal-Mart Canada Corp the plaintiff’s manager was ordered to pay her $100,000 in compensatory damages and $10,000 in punitive damages for his intentional infliction of mental suffering. 

Workplace harassment can also give rise to other types of claims, such as constructive dismissal, breach of the Human Rights Code, breach of the duty of good faith and fair dealing, and reprisal. Employees may also be eligible for WSIB benefits for chronic mental stress caused by workplace harassment. Finally, employers continue to have ongoing statutory obligations to prevent and appropriately respond to harassment in the workplace. For more on these obligations, please see our earlier blog post on Bill 132 – Sexual Violence and Harassment in the Workplace.

The foregoing is for informational purposes only and should in no way be relied upon as legal advice. For legal advice tailored to your circumstances and business, please contact any of SOM LLP’s lawyer’s by email or telephone. ​