The Common Law Tort of Harassment: Fact or Fiction?!

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Article2019 | 07 | 30

The Common Law Tort of Harassment: Fact or Fiction?!

The media and its 24/7 news cycle provides us with daily reminders that we are seeing an increase in the number of reported harassment complaints in the workplace.  There is ever-increasing pressure to respond with immediate internal or external investigations and reports.  Allegations of harassment and bullying in the employment context have become routine subject matter in law offices and court rooms across the Country.  It is said that in a modern and progressive workforce, an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee.  This begs the question: is there a free-standing tort of harassment in Canada?  A recent Ontario Court of Appeal decision suggests no, at least for the time being.

The Ontario Court of Appeal decision in Merrifield v. Canada (Attorney General), 2019 ONCA 205 is an interesting read both on the facts and the law. It involves claims of harassment and bullying made by the plaintiff, Peter Merrifield against RCMP Management while he worked as an RCMP Member. In February, 2005, Merrifield was assigned to the RCMP’s Threat Assessment Group which was responsible for providing protective services to federal politicians. However, strained relations between Merrifield and RCMP Management began in May, 2005 when Management learned that the plaintiff had run for the nomination to be a Conservative Party’s candidate in the upcoming federal election. Specifically, there was a concern Merrifield may be in a conflict of interest in investigating a death threat made against a well-known politician and heiress, Belinda Stronach, who had left the Conservative Party to join the Liberal Party. As a result, Merrifield was transferred out of the Threat Assessment Group.

Merrifield’s relationship with RCMP Management continued to sour when he was interviewed on a radio show as a “terrorism consultant.”  In September, 2005, Merrifield’s line manager reminded him he must follow RCMP policies with respect to media appearances.  Next, in October, 2005, Merrifield was refused assignment to the Special Operations Center which had been assembled to respond to a terrorist threat against the City of Toronto.  In January, 2006, Merrifield was transferred to Customs and Excise; however, he did not immediately report to this unit but went on sick leave until July, 2006.  In the meanwhile, Merrifield wrote to his line manager accusing him of misconduct in the audit of his corporate credit card usage.  The line manager in turn commenced a formal investigation under the Royal Canadian Mounted Police Act to determine whether Merrifield’s use of the corporate credit card contravened the RCMP’s Code of Conduct.  The investigator concluded it did.

In June, 2007, Merrifield commenced a civil action against the Crown on behalf of the RCMP and various members of RCMP Management seeking damages for the mental distress he had suffered as a result of harassment and bullying. The litigation was protracted and resulted in a forty day trial held over the course of 17 months from November, 2014 to April, 2016. The trial judge’s decision was significant insofar as she found that the independent tort of harassment existed in Ontario and, furthermore, that Merrifield satisfied the four part legal test to qualify for damages under this new tort. Specifically, the trial judge found in the affirmative with respect to the following four questions: first, was the conduct of the defendants towards Merrifield outrageous; second, did the defendants intend to cause emotional distress or did they have a reckless disregard for causing Merrifield to suffer from emotional distress; third, did Merrifield suffer from severe or extreme emotional distress; and fourth, was the outrageous conduct of the defendants the actual and proximate cause of the emotional distress. Having found many of the decisions made by RCMP Management with respect to Merrifield constituted harassment (in addition to the intentional infliction of mental suffering), the trial judge awarded him $100,000 in general damages, $41,000 in special damages and $825,000 in legal costs. The decision was appealed.

The Ontario Court of Appeal allowed the appeal concluding that the trial judge erred by recognizing an independent tort of harassment and in her application of the test for intentional infliction of mental suffering (over and above making palpable and overriding errors in much of her fact-finding).  Accordingly, the judgement was set aside.  The Court began by noting at paragraph 19 that this represented “the first case in which a Canadian appellant court has been required to determine whether a common law tort of harassment exists” before going on to consider the four trial-level decisions upon which the trial judge relied to establish the tort of harassment and its requisite elements.  At paragraph 28 the Court of Appeal wrote “taken as a whole, these [four] cases confirm neither the existence of the tort nor its elements” and at paragraph 36 “in sum, these cases assume rather than establish the existence of the tort.  They are not authority for recognizing the existence of a tort of harassment in Ontario, still less for establishing either a new tort or its requisite elements.”

The Ontario Court of Appeal did not leave the matter there, addressing its own question found at paragraph 37: “Given that authority does not support the existence of a tort of harassment, should this court nevertheless recognize such a new tort?”  In its analysis, the Court determined that the recognition of new torts is not simply an exercise of judicial discretion where (at paragraph 38) “the court can create a new tort anytime it considers it appropriate to do so . . . .that is not how the common law works, nor is it the way the common law should work.”  Paragraphs 39 and 40 go on to explain what was missing in recognizing the new tort of harassment in this case:

At the outset, it is important to recognize that this is not a case like Tsigne [Jones v. Tsigne, 2012 ONCA 32] which, as we have said, is best understood as a culmination of a number of related legal developments.  As we have explained, current Canadian legal authority does not support the recognition of a tort of harassment.

We were not provided with any foreign judicial authority that would support the recognition of a new tort.  Nor were we provided with any academic authority or compelling policy rationale for recognizing a new tort and its requisite elements.

At paragraph 43 the Ontario Court of Appeal ruled “In summary, the case for recognizing the proposed tort of harassment has not been made.”  At paragraph 49 the Court added that the similarity between the proposed tort of harassment and the existing tort of intentional infliction of mental suffering worked against the creation of the new tort because there would be significant overlap between the two.

In light of the Ontario Court of Appeal’s decision in Merrifield v. Canada (Attorney General) is this the end of the common law tort of harassment?  As counsel knows, the law is nothing if not dynamic and ever-evolving.  Paragraph 53 of the decision leaves the door open for the birth of this new tort give the right circumstances: “In summary, while we do not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts, we conclude that Merrifield has presented no compelling reason to recognize a new tort of harassment in this case.”  As the saying goes “the wheels of justice turn slowly but exceedingly fine.”



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About the Author
Timothy Lach
Timothy J. Lach