The Ontario Court of Appeal has concluded that there is no the tort of harassment in Ontario.
By way of background, the employee was a junior RCMP constable when he began and had been promoted to sergeant. The relationship between management and the employee became tense when the employee ran for a nomination for a political party without reporting it to the RCMP, for making public statements contrary to RCMP’s procedures in respect of media appearances, and improper use of the corporate credit card. He claimed that as a result of his political affiliations, he was harassed and bullied. He commenced a claim against the RCMP and several managers for damages for mental distress caused by the bullying and harassment.
On February 28, 2017, the trial judge determined that the tort of harassment exists in Ontario. The Court determined that there were four questions that needed to be addressed in order to establish the tort of harassment:
- Was the conduct of the defendants toward the plaintiff outrageous?
- Did the defendants intend to cause emotional distress or did they have a reckless disregard for causing Merrifield to suffer from emotional distress?
- Did Merrifield suffer from severe or extreme emotional distress?
- Was the outrageous conduct of the defendants the actual and proximate cause of the emotional distress?
The trial judge determined that each of the elements had been established by Merrifield. The trial judge determined that Merrifield suffered from depression and post-traumatic stress disorder as a result of the RCMP’s actions, and also concluded that the elements of a separate tort, intentional infliction of mental suffering, were also established, being conduct that is (1) flagrant and outrageous; (2) calculated to produce harm; and (3) results in a visible and provable illness. Merrifield was awarded $100,000 in general damages and $41,000 in special damages along with $825,000 for legal costs. As a result of the decision, a new tort of harassment was available for employees.
The RCMP appealed the decision to the Ontario Court of Appeal. The Court of Appeal rejected the establishment of a new tort of harassment in Ontario. The Court noted the importance of incremental changes to the common law consistent with the changing needs of society, and ultimately concluded that there was insufficient judicial support or legal precedent for the creation of new tort of harassment in Ontario. At the same time, the Court recognized that the well-established tort of intentional infliction of mental suffering was more difficult to establish requiring subjective intent to cause harm (opposed to reckless disregard) and a visible and provable illness (opposed to “extreme mental distress”). The Court of Appeal concluded that the tort of intentional infliction of mental suffering was sufficient to address claims of harassment and bullying in the workplace and rejected the need for a separate, new tort of harassment.
The Court of Appeal also rejected the trial judge’s conclusion that intentional infliction of mental suffering had been established. Importantly, the Court of Appeal rejected the finding that the initiation of a Code of Conduct investigation by the manager constituted flagrant and outrageous conduct. She made palpable and overriding errors in rendering her judgement. As a result, the appeal was allowed and the trial judgment was set aside.
For employers, the Court of Appeal has narrowed the scope of potential claims about harassment in the workplace. The established tort of intentional infliction of mental suffering remains available to employees if there is outrageous and flagrant conduct in the workplace, which is calculated to produce harm and which results in a visible and provable illness. While employers still need to be cognizant of statutory obligations in respect of harassment and violence in the workplace, and must ensure that there is a safe workplace for its employees free from harassment, the expansion of a new common law tort of harassment was rejected by a majority of the Court of Appeal.