Ontario Court of Appeal finds no tort of harassment exists

The Ontario Court of Appeal has held that the tort of harassment does not exist in Ontario. The Court’s March 15 decision in Merrifield v. Canada (Attorney General)¹ is the first in which a Canadian appellate court has been required to determine whether a common law tort of harassment exists.

What You Need To Know

• Ontario law does not recognize an independent common law tort of harassment.
• Employees cannot rely on an employer’s negligence to ground a common law claim for mental suffering. They must prove their employer intended to cause the kind of harm that occurred or knew that it was almost certain to occur.
• Although the Court of Appeal concluded that there is no independent tort of harassment, employers should continue to be aware of their ongoing statutory obligations to prevent harassment in the workplace, and to diligently and properly investigate harassment allegations.

Merrifield at the lower court

The plaintiff, Peter Merrifield, brought a claim against the RCMP alleging that his managers bullied and harassed him over a period of seven years.

Merrifield claimed that after he ran for the nomination to be the Progressive Conservative Party candidate in Barrie, his superiors harassed and bullied him including by subjecting him to an internal investigation, punitively transferring him to a new unit, and accusing him of criminal conduct.

Merrifield brought an action against the RCMP seeking damages for harassment and intentional infliction of mental suffering. At the time that Merrifield commenced his suit, it was an open question as to whether the tort of harassment exists in Ontario.

The trial judge decided in favour of Merrifield, finding that there was a freestanding tort of harassment in Ontario. She also concluded that there had been intentional infliction of mental suffering.

Notably, the trial judge concluded that the test to satisfy the tort of harassment was less onerous than the elements of the tort of intentional infliction of mental suffering. She recognized harassment as a negligence tort, which, unlike the tort of intentional infliction of mental suffering, could be committed without intent to cause harm. Nonetheless, the trial judge concluded that the conduct of Merrifield’s RCMP supervisors constituted both harassment and intentional infliction of mental suffering, and she awarded Merrifield $141,000 in general and special damages.

Merrifield at the Ontario Court of Appeal

The Ontario Court of Appeal rejected the lower court’s recognition of an independent tort of harassment.

The Court of Appeal found no Canadian legal authority supporting the existence of a tort of harassment, nor any foreign judicial authority, academic authority or compelling policy rationale which supported the establishment of a new tort. The Court of Appeal relied strongly on the “incremental” nature of changes to Canadian law, concluding that the facts did not “cry out” for the creation of a new tort. Rather, the Court recognized that the tort of intentional infliction of mental suffering is well established in Ontario and may be asserted as a basis for claiming damages for mental suffering, including in the employment context.

The Court of Appeal also overruled the lower court’s application of the test for the tort of intentional infliction of emotional suffering, which required the plaintiff to demonstrate that the conduct of the defendant: (1) was flagrant and outrageous; (2) was calculated to produce harm; and (3) resulted in visible and provable illness. It concluded that the RCMP’s conduct had not been “flagrant and outrageous”, and set aside the lower court’s judgment. The Court of Appeal further determined that the trial judge made palpable and overriding errors in many of her findings of fact, such as in ignoring relevant evidence, considering irrelevant matters and making incorrect factual findings.

Significantly, the Court of Appeal did not “foreclose the development of a properly conceived tort of harassment”, but concluded that Merrifield presented no compelling reason to recognize the tort in this case. While the question of the existence of an independent tort of harassment is answered for now, we may see additional attempts to recognize this new tort in the future.

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¹ 2019 ONCA 205