New Tort Allows An Employee to Sue An Ontario Employer For Harassment
March 30, 2017 By: Sean T. McGee Read Time: 2 minutes
Print

In Merrifield v The Attorney General, the Ontario Superior Court has made it clear that an employee can sue an employer for harassment.

Men arguing

The case involved people working in the upper echelons of top secret antiterrorist and serious crime policing, in addition to critical threat assessment, a special operations center and organized crime work in the Royal Canadian Mounted Police (“RCMP”).

Mr. Merrifield was a member of the RCMP. He worked in this and other areas. He also had an interest in politics, participating in nomination conventions and running as a candidate in a federal election.

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

The Court decided that his superiors at the RCMP were recklessly indifferent to the harm that their actions would cause, and that they were or should have been substantially certain that harm would happen.

The trial went on for weeks and the decision is nearly 900 paragraphs long, setting out all of the problems with the way management behaved. The facts in this blog barely scratch the surface.

However, the Court confirmed that someone can, in fact, sue for harassment if he or she meets a four-part test. To be successful, the judge has to be able to answer yes to the following questions:

  1. Was the conduct of the defendant(s) outrageous?
  2. Did the defendant(s) intend to cause emotional stress or did they have a reckless disregard for causing the plaintiff to suffer from emotional stress?
  3. Did the plaintiff suffer from severe or extreme emotional distress?
  4. Was the outrageous conduct of the defendant(s) the actual and proximate cause of the emotional distress?

In this case, the Court decided that the above test was made out: the defendants’ conduct towards Mr. Merrifield was outrageous; they had a reckless disregard for causing him to suffer emotional distress; his emotional distress was severe; and, finally the defendants’ outrageous conduct was the cause of Mr. Merrifield’s emotional distress.

After taking all of the RCMP’s actions into account, the Court ordered it to pay Mr. Merrifield $100,000 to compensate for the harassment and mental suffering he experienced.

The Courts have made it clear that they will have to find evidence of outrageous employer behaviour before employees have a right to sue for harassment; but, where an employer behaves this badly, Courts will compensate them for the damage caused.

If you believe you have been the victim of harassment at the hands of your employer, you can contact our Employment Law Group for advice. We are here to help.

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.