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In order to succeed in a claim for personal injury, a plaintiff must establish that the defendant’s conduct falls within a known cause of action. Until recently, it has not been clear whether acts of harassment can support a claim for damages.

Harassment at work

However, the recent decision of Merrifield v The Attorney General has confirmed that the tort of harassment does indeed exist in Canada. The case concerned a member of the RCMP who alleged he had been the victim of harassment and bullying by his superiors, which had caused him emotional stress and depression. The judge outlined the questions to consider when working out whether the tort of harassment applies:

  1. Was the conduct of the defendant toward the plaintiff outrageous?
  2. Did the defendant intend to cause emotional distress or did he/she have a reckless disregard for causing the plaintiff to suffer from emotional distress?
  3. Did the plaintiff suffer from severe or extreme emotional distress?
  4. Was the outrageous conduct of the defendant the actual and proximate cause of the emotional distress?

The tort of intentional infliction of mental suffering has existed in Canada for many years. The judge in the Merrifield case observed that it is similar to the tort of harassment, but with a couple of distinctions. With intentional infliction of mental suffering, in addition to being “outrageous”, the defendant’s conduct must also be “flagrant”. And the plaintiff must show that he/she suffered a “visible and provable” illness.

In the Merrifield case, the judge concluded that the defendants were liable to the plaintiff for both harassment and intentional infliction of mental suffering. But, on its face, it does appear that it may be easier for a plaintiff to make out a case of harassment than one of intentional infliction of mental suffering.

The Merrifield case has been appealed and so we shall have to wait and see what the Court of Appeal has to say on these issues.

For more information about the tort of harassment, contact our Personal Injury Practice Group.


This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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