Canada: Ontario Court of Appeal Confirms that Harassment Is Not a Tort

The recent decision of Merrifield v. Canada (Attorney General), 2019 ONCA 205, confirms that no independent tort of harassment exists in Ontario.

The respondent was a junior constable with the Royal Canadian Mounted Police (“RCMP”). In 2005, he was assigned to the RCMP’s Threat Assessment Group (“TAG”), which was a unit responsible for providing protective services to federal politicians. Three months after commencing this assignment, superior RCMP officers learned that the respondent was campaigning for a nomination in a federal election contrary to applicable RCMP regulations. After determining that the respondent was potentially in a conflict of interest, the RCMP transferred the respondent out of the TAG unit.

Following his removal from the TAG unit, the respondent engaged in a number of insubordinate acts, including breaching policies regarding media appearances, refusing assignments, and misuse of his corporate credit card.

In June 2007, the respondent commenced a civil action against the federal government and individual members of the RCMP, claiming damages for mental distress he had allegedly suffered as a result of bullying and harassment by RCMP management.

In an earlier decision, the Ontario Superior Court of Justice allowed the respondent’s claim. In doing so, the trial judge recognized a new freestanding tort of harassment comprised of the following elements:

1. Outrageous conduct of the defendants toward the plaintiff;
2. Intention of the defendants to cause emotional distress and/or reckless disregard of the defendants for causing the plaintiff to suffer emotional distress;
3. Severe or extreme emotional distress suffered by the plaintiff; and
4. An actual and proximate causal relationship between the defendants’ outrageous conduct and the plaintiff’s emotional distress.

Applying the above test, the trial judge found that the appellants were liable in tort for harassment of the respondent. In particular, the trial judge found that the respondent’s managers had acted unreasonably and recklessly in removing him from the TAG unit and that this conduct was the actual and proximate cause of the respondent’s emotional distress.

The Ontario Court of Appeal set aside the lower court judgment and found, inter alia, that the trial judge had erred by recognizing a tort of harassment. In its decision, the Court emphasized that significant legal change ought to be left to the legislature, whereas new common law duties must be created incrementally and only in response to existing societal needs. The Court then reviewed the authorities cited by the trial judge and held that they neither confirmed the existence of a tort of harassment nor its elements. The Court also stated that there was no foreign judicial authority, academic authority, or compelling policy reason for recognizing a new tort—especially given existing legal remedies (such as the tort of intentional infliction of mental suffering) to redress harassing conduct.

Notwithstanding the inability of employees to bring civil actions for harassment, Canadian employers may still face harassment-related liability pursuant to human rights legislation and occupational health and safety legislation. Employers should review their policies, training, and investigation procedures to ensure that they are taking appropriate and reasonable steps to protect against workplace harassment and bullying.