Merrifield v. The Attorney General of Canada: The Tort of Harassment, Toronto Employment Lawyer

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In Merrifield v. The Attorney General of Canada, 2017 ONSC 1333, the Ontario Superior Court of Justice recognized harassment as a tenable cause of action, and a free-standing tort in Ontario. Before this decision, harassment was only actionable in the context of a breach of the Human Rights Code, constructive dismissal, bad faith during termination, or reprisal under a specific statute.

In this case, the Plaintiff was employed by the Royal Canadian Mounted Police (“RCMP”).  He alleged that, after participating in a Barrie nomination meeting for the Progressive Conservative Party in 2005 to challenge the incumbent as a form of protest, his superiors made unjustified and unwarranted decisions about him based on allegations that had no merit.  Among others, the RCMP falsely accused him of engaging in criminal conduct, launched a baseless investigation against him, damaged his reputation, and impeded his career advancement, all of which caused him to fall into a deep bout of depression. 

The Plaintiff claimed damages for harassment, among other heads of damages, but did not allege a violation of the Ontario Human Rights Code.  His claim was against the defendants for committing the common law tort of harassment. 

After analyzing past case law, the Court determined that the tort of harassment does exist and has been recognized as a cause of action in Ontario.  The Court listed the appropriate test to substantiate a claim of harassment:

1.Was the conduct of the employer outrageous?  The perceived harassment must be “grossly offensive,” and assessed on an objective basis.

2.Did the employer intend to cause emotional stress, or did it have a reckless disregard for doing so?  This step does not require the conduct to be intentional, but it must rise above the level of simple negligence.

3.Did the employee suffer from severe or extreme emotional distress?  The employee must prove that they suffered distress that “no reasonable person in a civilized society should be expected to endure.”

4.Was the outrageous conduct of the employer the actual and proximate cause of the emotional distress?  The employee must prove that the harassment caused the distress.  Pre-existing medical conditions, for example, will weaken the employee’s case.

Applying the test to the case at hand, the Court concluded that “the defendants’ conduct toward the plaintiff was outrageous. The defendants had a reckless disregard of causing the plaintiff to suffer emotional distress. His emotional distress was severe. The defendants’ outrageous conduct was the actual and proximate cause of the plaintiff’s emotional distress. The plaintiff has proven the tort of harassment.”

Thus, the Court found that the Plaintiff had proven the tort of harassment and awarded the Plaintiff $140,000 in general and special damages.

Although there has been a long-standing civil tort of intentional infliction of mental suffering, this new tort of harassment highlights the seriousness with which the courts will deal with harassment issues in the workplace.  It is important to have updated harassment policies and training provided to all employees.  Most importantly, there should be a system in place to deal with the intake and investigation of harassment complaints.  If you believe you are dealing with harassment issues in the workplace, please contact Monkhouse Law for a free consultation.

About the Author: Miguel Mangalindan is an associate lawyer at Monkhouse Law where he practices Employment, Human Rights and Disability Insurance Law.


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