Ontario Court of Appeal Refuses to Recognize Freestanding Tort of Harassment

January 2020

Article by: Jordan Michaux

Previously printed in the LexisNexis Labour Notes Newsletter.

In Merrifield v. Canada (Attorney General), 2019 ONCA 205, the plaintiff was a longstanding member of the RCMP who alleged that his supervisors had discriminated against him for years.  The strained relationship began when the plaintiff had run for public office.  He was considered to be in a potential conflict of interest following his investigation of threats against a political rival.  The plaintiff had also been reprimanded for his appearance on a radio show, and subject to an investigation relating to credit card use.  He claimed that he had been subjected to bullying and harassment which damaged his professional reputation and prospects, and caused severe emotional and psychological distress.

The trial judge found that the plaintiff’s superiors had intentionally sabotaged his career with reckless disregard for the mental distress he suffered.  The trial judge found that the tort of harassment exists under the common law in Ontario, and accepted that the elements of that tort had been made out.  The judge also concluded that actions of the plaintiff’s superiors constituted intentional infliction of mental distress, and awarded him damages in the amount of $100,000.

The Crown appealed the trial judgment and the appeal was allowed.  The Ontario Court of Appeal’s decision was the first decision in which a Canadian appellate court had the opportunity to consider whether the tort of harassment exists at common law.  The Court noted that none of the cases which the plaintiff had cited or on which the trial judge had relied confirms the existence of a freestanding tort of harassment in this country.  Ultimately, the Court of Appeal concluded that no freestanding tort of harassment has yet been recognized in Canada, and nothing about the circumstances of the plaintiff’s case “cried out” for the establishment of such a tort.  This was particularly true because the tort of intentional infliction of mental distress was already available to the plaintiff as a remedy for any “flagrant and outrageous” conduct which was “calculated to produce harm”.

The Court of Appeal went on to conclude that the trial judge had made serious errors in applying the test for intentional infliction of mental distress.  The trial judge had ignored relevant evidence, made incorrect factual findings, and relied on irrelevant evidence to conclude that the plaintiff’s supervisors had engaged in outrageous conduct intended to harm him and the conduct had resulted in a visible and provable illness.

Significantly for present purposes, the plaintiff was denied leave to appeal to the Supreme Court of Canada.

Key Employer Takeaways

  • The Court of Appeal did not completely foreclose the possibility that a new tort of harassment might be established some day. However, the Court’s decision makes clear that courts should be slow and cautious to recognize such a freestanding tort, particularly in the context of alleged bullying and harassment in the workplace.  The established doctrine of intentional infliction of mental distress can be applied to assess any such allegation.
  • The Court of Appeal emphasized that awards of damages for intentional infliction of mental distress are intended for only the most egregious forms of misconduct. For a damages award to be warranted, an employer’s conduct must: (1) be flagrant and outrageous; (2) be calculated to produce harm; and (3) result in a visible and provable illness.  The Court’s close scrutiny of the trial judge’s conclusions highlights that any such damages award should not be made without a strong evidentiary foundation.
  • Even if the circumstances do not rise to the high threshold for intentional infliction of mental distress, employers should be aware that there may be grounds for aggravated and/or punitive damages in the context of a claim for another legal wrong.