Court of Appeal rules no freestanding tort of harassment in Ontario

by Cristina Tomaino

Back in 2017, we blogged about Merrifield v. the Attorney General (“Merrifield”), a decision where the Superior Court of Justice recognized a new and freestanding tort of harassment in Ontario. In that decision, Justice Vallee laid out the following four-part test to establish a civil claim for harassment:

1. Was the conduct of the defendant(s) outrageous?
2. Did the defendant(s) intend to cause emotional stress or did they have a reckless disregard for causing the plaintiff to suffer from emotional stress?
3. Did the plaintiff suffer from severe or extreme emotional distress?
4. Was the outrageous conduct of the defendant(s) the actual and proximate cause of the emotional distress?

The plaintiff in Merrifield alleged that his working relationship with his superiors deteriorated to the point that he was forced to take a medical leave of absence and experienced significant levels of stress and anxiety.

Justice Vallee found that the newly established test for harassment was met and awarded the plaintiff $100,000 in damages against the RCMP for harassment and the intentional infliction of mental suffering, an existing tort in Ontario.

Just last week, however, the Court of Appeal for Ontario set aside the finding of Justice Vallee and held that the tort of harassment does not currently exist in Ontario and Merrifield did not present a “compelling reason” to create one.

The court also found that the trial judge had made several factual errors that “preclude a conclusion that Merrifield was harassed – even assuming that a tort of harassment exists.” The elements of intentional infliction of mental suffering were also not made out on the facts of the case.

While the court did not rule out the possibility that harassment may one day be recognized as an independent tort, for now it is not a tort Ontario employers need be concerned with. That said, it is important to remember that under the Ontario Occupational Health and Safety Act and the Canada Labour Code (for federally-regulated employers) employers have specific legislative obligations to address and prevent harassment in the workplace.

The lawyers at CCPartners are well versed in navigating all aspects of harassment complaints and investigations.

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