Court of Appeal rejects recognizing tort of harassment

The Ontario Court of Appeal has emphatically rejected “harassment” as a freestanding tort, at least in employment cases — but it didn’t close the door on the tort forever.

25 Mar 2019

The Ontario Court of Appeal has emphatically rejected “harassment” as a freestanding tort, at least in employment cases — but it didn’t close the door on the tort forever.

In refusing to recognize the tort at this time, the court rejected the argument made by the plaintiff’s lawyer in Merrifield v. Canada (Attorney General) that the new tort was necessary because of society’s increased “recognition that harassment is wrongful conduct.”

“It was apparent that the court didn’t want to have these kinds of claims brought into court at this time,” says Laura Young of Laura Young Law Offices in Toronto, who represented Peter Merrifield. “So, harassed employees are now stuck with proving intentional infliction of mental suffering.”

Ultimately, the court found that there was no compelling policy rationale to recognize the tort of harassment.

“While it is true that there is increased and long-overdue societal recognition that workplace harassment is completely unacceptable conduct, the Court of Appeal simply did not see any legal gaps warranting the recognition of a new tort at this time,” says Paul Boshyk, a Toronto partner in McMillan LLP’s advocacy and employment group. “In essence, the court concluded that the tort of harassment was a less onerous version of the already well-established tort of intentional infliction of mental suffering.”

Boshyk says human rights tribunals have, in recent years, shown an increased willingness to award significant damages to employees in workplace harassment cases. He cites O.P.T. v. Presteve Foods, the 2015 landmark decision where the Human Rights Tribunal of Ontario ordered an employer to pay record-high damages of $150,000 for “injury to dignity, feelings and self-respect” after it found that the employer engaged in a persistent and ongoing pattern of sexual harassment in the workplace.

To some extent, the decision should not be a surprise.

In 2010, Juriansz, the senior judge in Merrifield, was a member of the unanimous bench that decided Piresferreira v. Ayotte. In that case, the bench declined to recognize a new tort of negligent infliction of mental suffering — essentially the equivalent of the harassment tort put forward in Merrifield.

The court also noted the Supreme Court of Canada’s ruling in Wallace v. United Grain Growers, where Justice Frank Iacobucci (now retired), writing for the majority, intimated that the recognition of a new tort in the employment context, which is a contractual relationship, was better left to the Legislature.

Here, Merrifield was indeed an RCMP employee member and a member of the force’s threat assessment group, whose responsibilities included protecting politicians. Following what he characterized as seven years of bullying and harassment from his superiors stemming from his alleged breach of RCMP regulations after he sought a Conservative Party nomination in Barrie, Ont., Merrifield left his job and in 2007 sued for harassment, international infliction of mental suffering, loss of income and general damages.

After a 40-day trial that ended in 2016, Justice Mary Vallee of the Superior Court of Justice recognized harassment as a freestanding tort. She awarded Merrifield $100,000 in general damages, $41,000 in special damages and $825,000 in costs.

But a unanimous Court of Appeal composed of justices Russell Juriansz, David Brown and Grant Huscroft ruled that Vallee had erred in recognizing the new tort. Doing so, the court concluded, was not a matter of judicial discretion that allowed judges to create new torts “anytime” they considered it appropriate to do so.

“This is not a case whose facts cry out for the creation of a novel legal remedy,” the court wrote — while stating in virtually the same breath that it did not “foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts.”

Merrifield wasn’t a case that cried out for an award based on intentional infliction of mental suffering either. In allowing the defendant’s appeal and dismissing the action, the appellate court concluded that the trial judge had made “palpable and overriding errors” in her findings of fact and incorrectly applied the legal test for intentional infliction of mental suffering.

Young says seeking leave to appeal to the Supreme Court of Canada will be “the subject of discussion” with her client.

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