On March 15, 2019, The Ontario Court of Appeal released its decision in Merrifield v. Canada (Attorney General), reversing a trial decision in which the Ontario Superior Court of Justice had recognized the existence of a common law “tort of harassment”.
The plaintiff’s claim was based on conduct that he had experienced during his employment with the Royal Canadian Mounted Police (RCMP), which he claimed amounted to bullying and harassment. He complained about several unit reassignments, an investigation into his work-related expenses, and an assessment of a potential conflict of interest.
The Court of Appeal found that the trial judge erred in recognizing a free-standing tort of harassment, which had not previously been available as a cause of action in Canada, noting:
“Common law change is evolutionary in nature: it proceeds slowly and incrementally rather than quickly and dramatically…” .
In determining whether or not to recognize the tort of harassment, the Court of Appeal looked to Bhasin v Hrynew, which affirmed the duty of good faith contractual performance in 2014, and Jones v Tsige, which recognized the tort of “intrusion upon seclusion” in 2012. However, the Court of Appeal determined that the usual factors supporting a common law development were not present, including, among others:
- An existing degree of recognition of the tort or duty among trial courts
- Support in the content or underlying principles of Canadian or provincial legislation
- Support in academic scholarship
- Similar concepts being accepted in jurisdictions outside of Canada
- Changing societal circumstances that compel sudden action (e.g. the threats of new technology)
- The presence of societal needs that require vindication, or facts that “cry out for a remedy”, but would otherwise be left without recourse
Not only did the Court of Appeal in Merrifield determine that the facts did not cry out for a remedy, but also, it found that the tort of harassment was merely a less onerous version of the tort of “intentional infliction of mental suffering” (IIMS), as is plain in a comparison of some of their factors:
|Requires flagrant and outrageous conduct||Would require only outrageous conduct|
|Requires a subjective intention to cause harm||Would require an intention or objectively-defined reckless disregard to cause harm|
|Requires conduct that is the proximate cause of a visible and provable illness||Would require conduct that causes severe or extreme emotional distress|
However, despite its clear rejection of the tort, the Court did not close the door on its future development, if such could be supported by the factors noted above.
Apart from the tort of IIMS noted above, Ontario employees already enjoy protections against workplace harassment under human rights legislation and occupational health and safety legislation. Moreover, many Ontario employees may seek compensation for the effects of workplace harassment, so long as in accordance with the terms of worker’s compensation legislation and policy or applicable disability insurance policies.
In our view, the Merrifield decision should therefore not be seen as a huge setback for employee rights. Nor should it lead to complacency on the part of employers in matters of workplace harassment, which must continue to be treated seriously and in compliance with existing laws.