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Judge recognizes civil tort of harassment

Focus on: Labour & Employment Law
|Written By Michael McKiernan
Judge recognizes civil tort of harassment
Landon Young says that while a recent Ontario Superior Court decision marks a significant change in the law, courts have in practice sanctioned similar conduct in recent years without carving out a separate tort. 

Employment lawyers say a judge’s recognition of the free-standing civil tort of harassment was the next logical step in the development of Ontario’s workplace law.

In Merrifield v. The Attorney General, Ontario Superior Court Justice Mary Vallee awarded a former Royal Canadian Mounted Police member $140,000 in general and special damages.

The decision distinguished for the first time between the long-standing civil tort of intentional infliction of mental suffering and the brand new tort of harassment. 

Landon Young, managing partner at Toronto management-side employment and labour law boutique Stringer LLP, says that while the decision marks a significant change in the law, courts have in practice sanctioned similar conduct in recent years without carving out a separate tort.  

“The trend has been going this way for quite a while,” Young says.

“If employers either harass an employee or they fail to take allegations of harassment in the workplace seriously, courts have found ways to make significant damage awards that reflect their disapproval, even in the absence of a formal tort.”

Jordan Kirkness, a lawyer in the employment law practice group at Baker and McKenzie LLP, traces the origins of the Merrifield decision back to the end of the last decade, when Bill 168 received Royal assent.

The law amended the Occupational Health and Safety Act, creating new obligations for employers to deal with workplace and violence and harassment, including mandatory risk assessments and policy creation.

“That was the beginning, and it was revolutionary in the sense it confirmed that harassment of this type would fall under the OHSA,” Kirkness says.

That was followed a few years later by Bill 132, Ontario’s Sexual Violence and Harassment Action Plan Act, which requires employers in the province to conduct investigations into incidents and complaints of workplace harassment.

“Bill 132, in a lot of ways, gave teeth to Bill 168 by requiring employers to be more active and involved when complaints come in,” Kirkness says.

“This decision is part of a progression; courts have become increasingly intolerant of these kinds of activities in the workplace, and this is like an extra reminder that harassment is no longer acceptable.”

The case dates back to 2005, when Peter Merrifield entered the race for nomination by the federal Conservative Party in Barrie, Ont. At the time, he was seven years into his employment with the RCMP, where he was focused on counter-terrorism and serious crime.

However, according to the decision, Merrifield said his run upset superiors in the force, who objected to campaign materials that referenced support for the traditional concept of marriage and the abolition of the long gun registry.

In subsequent years, he faced four investigations into alleged breaches of the RCMP’s code of conduct, including one conducted in secret without Merrifield’s knowledge.

Despite positive performance reviews, Merrifield’s 2013 statement of claim said groundless investigations, a punitive transfer and bullying by his bosses caused him severe emotional distress, including depression.

The RCMP resisted his claim, arguing in part that the civil tort of harassment does not exist. However, Vallee disagreed, laying out a four-part test for determining whether it has occurred:

Was the conduct of the defendant outrageous?

Did the defendants intend to cause, or have a reckless disregard for causing, emotional stress to the plaintiff?

Did the plaintiff suffer from severe or extreme emotional distress?

Was the plaintiff’s emotional distress caused by the defendant?

Applying the test to Merrifield’s case, Vallee found he had “proven the tort of harassment.”

In addition, she found Merrifield met the similar test for intentional infliction of mental suffering, which requires the defendant’s conduct to be “flagrant” as well as “outrageous” and to show it caused a “visible and provable illness.”

“Notwithstanding the absence of medical evidence, I am satisfied that the plaintiff suffered from depression and post-traumatic stress disorder as a result of the RCMP’s actions,” Vallee wrote. 

“I find that the plaintiff has proven the tort of intentional infliction of mental suffering.”

The judge set the damages for the combined torts at $100,000, and she also awarded Merrifield a further $41,000 in special damages as a result of his inability to write an exam that would have led to his promotion.

Although the decision has been appealed, Laura Young, the Toronto employment lawyer who acted for Merrifield, says her client felt vindicated by Vallee’s ruling.

“It was a very lengthy trial and a much longer process for him, so he was very happy to have his claims verified by the court,” says Young, who adds that she expects more employees to include harassment claims as part of their actions against employers in future.

RCMP spokesman Harold Pfleiderer told Law Times that the RCMP is “committed to providing its employees with a safe and respectful work environment, free from harassment.”

“After a careful review and detailed legal examination of the reasons for judgment the RCMP has asked lawyers from the Department of Justice to appeal the Ontario Superior Court decision in the Merrifield case on the grounds that the decision contained both errors in fact and law,” he added, declining to provide further comment while the matter is before the courts.             


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