The Ontario Court of Appeal has abolished the "tort of harassment"—a private right of action created by the courts.
Lower Court Decision
In Merrifield v. The Attorney General, 2017 ONSC 1333 (2017-02-28), a 2017 case about strained relations between a Royal Canadian Mounted Police (RCMP) member and several of his supervisors, the Ontario Superior Court of Justice (ONSC) created a new tort of harassment, establishing it as an independent "tort," or wrongful act, upon which a civil cause of action could be based. Additionally, the ONSC awarded $140,000 in damages, finding that this tort, along with the tort of intentional infliction of mental suffering, had been proven.
Decision of Ontario Court of Appeal
However, the Ontario Court of Appeal (ONCA) abolished the tort of harassment in Merrifield v. Canada (Attorney General), 2019 ONCA 205 (2019-03-15). In reviewing the authority the ONSC relied on to support its decision, the ONCA stated, "These cases assume rather than establish the existence of the tort. They are not authority for recognizing the tort of harassment in Ontario. … Current Canadian legal authority does not support the recognition of the tort of harassment."
Given that such a tort did not exist before Merrifield, the ONCA held it was necessary to seek input on whether it ought to exist, and this was an analysis the ONSC failed to undertake.
The ONCA compared the tort of harassment to the tort of intrusion upon seclusion, a privacy tort the ONCA established in 2012 in Jones v. Tsige, 2012 ONCA 32 (2012-01-18). The tort of intrusion upon seclusion was "best understood as a culmination of a number of related legal developments," which already existed in other jurisdictions and provided a legal remedy to fill a gap in the law.
By contrast, the ONCA found that there are a variety of adequate existing legal remedies available to compensate for harassment, such as the tort of intentional infliction of mental suffering, and there was no compelling reason to recognize the tort of harassment.
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The ONCA also overturned the ONSC's finding that the elements of the tort of intentional infliction of mental suffering were made and found that the RCMP's conduct was not "flagrant and outrageous." As a result, the appeal was allowed, and the damages award was vacated.
Professional Pointer: While this is a welcome decision for employers, taking all reasonable steps to prevent harassment, including sexual harassment, in the workplace is critical for employers. These steps include providing anti-harassment training, having appropriate workplace policies and investigating any incident or complaint of harassment, all of which may be required by applicable occupational health and safety legislation. Harassment also may constitute a breach of applicable human rights legislation when it is linked to a prohibited ground of discrimination. In addition, if there is retaliation against an alleged victim of harassment, there may be punitive damages.
David J. Master is an associate in Littler's Toronto office. Monty Verlint is a partner in Littler's Toronto office.