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The Ontario Court of Appeal has found in Merrifield v the Attorney General [Merrifield] that there is no “tort of harassment” in Ontario. The Court of Appeal reversed the 2017 Ontario Superior Court of Justice decision that recognized a free-standing tort of harassment, which we wrote about here. Recognizing a free-standing tort of harassment meant that a civil claim in Ontario could be based on the mere fact that a plaintiff experienced harassment.

The Decision

Merrifield involved a Royal Canadian Mounted Police (“RCMP”) employee who had been assigned to a unit that provided protection to Canadian politicians. During his employment with the RCMP, the employee ran in several political campaigns. He also had an RCMP credit card for business related expenses.

The employee failed to adhere to the RCMP rules regarding officers who ran for political office. He also clashed with his employer over expenses incurred on his RCMP credit card, which he had used for minor personal purchases without prior clearance. The employee’s political involvement resulted in his transfer to another position with the RCMP which he did not enjoy. His credit card activities also led the RCMP to investigate him for financial fraud.

At trial, the Superior Court relied on a handful of cases which had loosely recognized a tort of harassment to rule that the employer had harassed the employee. The court further found that the employer had engaged in intentional infliction of mental suffering, which is another tort recognized in Ontario courts, and which required a higher threshold of misconduct than the tort of harassment. As a result of these findings, the employee was awarded $100,000.

The Court of Appeal reversed the decision, ruling that no freestanding tort of harassment has been recognized by Ontario courts, or any Canadian appellate court. The Court of Appeal reaffirmed that courts should only generate new law in exceptional circumstances, such as where an individual had clearly suffered an injustice to which current law offered no remedy. The Court of Appeal noted that, as the Court was not even convinced the employee had been harassed, Merrifield was not an appropriate case for recognizing a new tort of harassment.

The Court of Appeal in Merrifield also found that the employer had not intentionally inflicted mental distress on the employee. The tort of intentional infliction of mental distress requires the very high threshold of “flagrant and outrageous” conduct and the Court found that the trial judge had erred in concluding that the employer’s conduct had met the threshold because there had been reasonable explanations for what the employer had done.

Takeaway

Although Merrifield could still be appealed, it seems that for now at least, no independent tort of harassment exists in Ontario, meaning that employees will be unable to claim civil damages solely based on having experienced harassment. While this reduces an employer’s potential exposures related to harassment, the Ontario Human Rights Code as well as Ontario’s Occupational Health and Safety Act both require employers to take measures to prevent and/or address workplace harassment. Further, employees have been and likely will continue to increasingly claim harassment damages as part of wrongful dismissal claims once the employment relationship has ended when employers fail to address workplace harassment appropriately.

Employers should still take their obligations to prevent harassment and address it appropriately if it does occur seriously. This includes taking all reasonable steps necessary to provide a harassment-free workplace and diligently adhering to the obligation to investigate any incidents or complaints of harassment in the workplace. Employers should implement harassment policies that meet the legislative requirements, but also clearly and adequately set expectations with respect to appropriate and inappropriate workplace conduct, as well as with respect to the harassment complaints and investigation process.

This blog is provided as an information service and summary of workplace legal issues.

This information is not intended as legal advice.