Is there a tort of harassment in Ontario? ONCA says “no, but maybe, but probably not, so yeah…”
March 16, 2019 By: Andrew Montague-Reinholdt Read Time: 2 minutes
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Well, after a few years of plaintiffs understanding that there was a tort of harassment in Ontario, the Ontario Court of Appeal (the “ONCA”) in Merrifield v Attorney General of Canadahas definitively stated that there is no tort of harassment in Ontario, unless there is.

Trial decision

Over the course of several years, Mr. Merrifield’s relationship with his superiors went from bad to worse, despite getting many positive evaluations for his work. Eventually, he was transferred out of his job, in a way that the trial level judge found to be unjustified and punitive. The trial level judge also found that the RCMP acted on incorrect assumptions and, prior to transferring Mr. Merrifield, failed in its obligation to rationally consider his actions.

After taking all the RCMP’s actions into account, the trial level judge ordered it to pay Mr. Merrifield $100,000 to compensate for the harassment and mental suffering he experienced. The trial level judge also explained that the common law developed to the point that the tort of harassment existed in Ontario.

The Ontario Court of Appeal Decision

The ONCA disagreed with the trial judge, on almost all findings, including finding that there was no tort of harassment. The Court went to great lengths to justify its finding that the tort does not exist explaining that:

  1. No decision maker had explicitly accepted that the tort existed;
  2. The ONCA expressed concern at the idea of a court creating a new tort (despite the fact that this is what the common law has always been about);
  3. The tort of intentional infliction of mental suffering sufficiently dealt with this type of conduct (despite the higher threshold to claim damages under this tort); and
  4. It disagreed (without really explaining why) with Merrifield’s argument that there is an increased social recognition that harassment is wrongful conduct.

However, and somewhat bizarrely, the ONCA then does not completely close the door to the tort of harassment:

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.

Takeaways

This decision leaves us somewhat scratching our heads. While the ONCA seemingly went to great lengths to explain the reasons why the tort does not exist, it then stated that, in the appropriate context the tort could exist. The Court provided no guidance as to what the appropriate context is for the tort.


Perhaps, the Court was suggesting that the tort is applicable to deal with non workplace harassment, since this is already addressed through existing torts (intentional infliction of mental suffering) and employment legislation, including minimum employment standards, workplace health and safety legislation, and human rights legislation. Instead, the ONCA may be saying that the tort is better used in other situations (for example between feuding neighbours).

Or, it is possible that the Court is waiting until, in its view, it sees a stronger set of facts than Merrifield to recognize the tort. In Merrifield, while the trial judge found that the Defendant’s conduct was outrageous and intended to cause Merrifield mental distress, the ONCA overturned many of these findings of fact.

As such, it is difficult to fully predict the significance of this decision and we will wait to see whether this case goes to the Supreme Court. However, until we know what the “appropriate context” is for the tort, we are likely going to see plaintiffs continuing to advance claims based on the tort of harassment.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2019 Nelligan O’Brien Payne LLP.

Service: Employment Law