May 17

Merrifield v. Canada (Attorney General): No Tort of Harassment, Toronto Employment Lawyer

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The Ontario Court of Appeal (ONCA) recently released their decision in the matter of Merrifield v. Canada (Attorney General). The ONCA reversed the decision made by the trial judge (posted about earlier in this blog) by definitively ruling that as Canadian jurisprudence currently stands there is no basis for the tort of harassment.

The plaintiff, employee, a member of the police force made a claim for harassment and bullying which he claimed negatively affected his career and caused him emotional distress.

In rejecting the employee’s claim for damages due to the tort of harassment, the ONCA underscored that the intentional tort of mental suffering already exists, along with employer obligations to take steps pursuant to human rights and occupational health and safety legislation to ensure their workplaces are free from harassment. The Court found that this is what should form the basis of claiming damages for mental suffering in the employment context. In other words, there was other redress available to the employee based on this set of facts that did not require the tort of harassment. That said, the Court did leave open that there could be development of the tort of harassment in a certain context.

What does this mean in the context of employment and in Canadian jurisprudence?

This decision does not prevent employees from seeking damages related to their mental suffering within the workplace. Furthermore, it does not mean that employers are released from their duty to create a safe and harassment free work environment. No employee should feel unsafe in the workplace and while many employers strive to have a harassment free work environment, harassment can and does occur. Having the courts recognize a tort for harassment in addition to intentional infliction of mental suffering might signal a further non-tolerance for this kind of behaviour. However, as the ONCA rightly asserted it is not the courts job to be so interventionist, the tort must develop in an evolutionary way through the common law or through acts of the legislature.

The main take away for employees and employers is that while the tort of harassment may not currently exist, workplaces need to be free from harassment, and employees still have recourse if they experience mental suffering in the workplace.

Monkhouse Law can help you navigate these workplace issues. Contact Monkhouse Law today.

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