A Crack in the Dam? Merrifield v. Attorney General (Ont.) and the Undead Tort of Harassment

October 2017

Article by: Gavin Marshall

Previously printed in the LexisNexis Labour Notes Newsletter.

For many years, workplace law has generally proceeded on the assumption that remedies for harassing behaviour and civil “harassment” were, except in rare cases, outside the purview of the courts. Harassment, as a civil wrong, had developed within the administrative structure of human rights tribunals and grievance processes under collective agreements but there was no generally recognized common law “tort” of harassment.

In February 2017, the case of Merrifield v. Attorney General (Ont.), 2017 ONSC 1333 breathed a controversial sliver of life into the concept of a common law tort of harassment.  Although the case presents a high likelihood of appeal, and stands on a mercifully unique set of legal circumstances, it is nevertheless a troubling development.

Merrifield was a distinguished Royal Canadian Mounted Police (RCMP) officer who had a career which included high-level international and domestic security operations. He had political aspirations, and sought to advance those transparently in a manner consistent with RCMP policies about avoidance of conflict of interest.

The Ontario Superior Court of Justice found that over a period of seven years, Merrifield’s career was damaged by a pattern of conduct on the part of his superiors which caused him emotional and medical stress and upset, despite his efforts to address all issues fairly with the force.

Merrifield’s claim included an allegation of simple harassment. The Court relied on a small number of slender references in previous case law to infer that the tort has been recognized in some circumstances.  The test was closely aligned with the well-established tort of intentional infliction of emotional distress, except that “harassment” did not require as clearly an established causal connection between the conduct and a medically diagnosed condition as the tort.

The tort was said to require outrageous conduct, combined with intentional or reckless disregard for whether harm would result to the employee, severe or extreme emotional distress for the employee, and a causal connection between the conduct and its effect.

After reviewing evidence in a case which took 40 days of trial over the period of time from 2014 to 2016, the Court had no trouble finding that harassment had taken place and awarded $100,000 in damages under that head alone.

The Merrifield case needs to viewed in context.  The Court found that because Merrifield’s employment relationship was governed by statute (the Royal Canadian Mounted Police Act) and not contract, no award for contractual damages could flow from the misconduct of the RCMP.

It should also be noted that in some jurisdictions in Canada, occupational health and safety rules concerning workplace bullying and harassment have started to occupy the field that is taken up by the claims of harassment and even intentional infliction of emotional distress that were at the heart of Merrifield’s claim.  The advance of occupational health and safety law into the realm of compensation for emotional harm occasioned by the conduct of supervisors and co-workers has created an opportunity for employers to argue that the kinds of civil claims advanced by Merrifield within the unique field of his employment may be limited, or even foreclosed, in provinces where exclusive jurisdiction has been assumed by workers’ compensation law.

Nevertheless, the Merrifield case is ammunition for plaintiff-side lawyers seeking to continue to keep the civil tort of harassment on life support.