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The Ontario Court of Appeal (ONCA) recently narrowed the legal remedies available to employees experiencing harassment at work by rejecting an independent common law tort of harassment in Merrifield v. Canada (Attorney General), 2019 ONCA 205.

Background

The employee accused his superiors at the Royal Canadian Mounted Police (“RCMP”) of bullying and harassment, for investigating him for conflicts of interests and criminal conduct after his run for a political nomination.

The judge awarded him $141,000 in general and special damages, plus the costs of the action under an independent tort of harassment, which was not previously recognized under common law.

The Crown, on behalf of the RCMP, successfully appealed that decision.

The Appeal

The ONCA allowed the appeal for the reason that there is already an existing legal remedy under the similar tort for Intentional Infliction of Mental Suffering (IIMS) and that recognition of a new tort of harassment is not warranted.

Intentional Infliction of Mental Suffering versus Harassment

In Ontario, the tort of IIMS is well-established and commonly used in cases involving workplace harassment.

However, establishing IIMS is more onerous for plaintiffs than the proposed tort of harassment would have been because in order to establish IIMS, the employee must prove that the employer engaged in flagrant and outrageous conduct that was intended or calculated to produce a visible or provable illness.

By contrast, the test for the tort of harassment, as proposed by the trial judge, would require that the outrageous conduct was either intended to cause harm or was the result of reckless disregard. It would operate as a negligence-based tort as opposed to an intentional tort.

ONCA has previously rejected a claim for damages in the employment context due to negligent infliction of mental suffering in Piresferreira v. Ayotte, 2010 ONCA 384 (CanLII).

However, harassment in the workplace is being increasingly recognized as wrongful conduct and the decision does not foreclose the possibility that the tort might be recognized in other cases.

Impact

The decision serves to protect employers from civil liability for harassment claims arising from negligent or unintentionally harmful conduct.

Employees seeking to sue their employers for harassment in civil courts going forward will continue to be required to meet the more onerous test for IIMS.

Takeaways for both Employers and Employees

Employers remain obligated to provide a workplace free of harassment under both the common law and various statutory regimes and should ensure that its policies and training are designed to prevent harassment in the workplace and that complaints of harassment are appropriately investigated.

Employees should be aware that although the tort of IIMS may be relatively more difficult to meet, employees can also seek redress including for the harm caused by unintentional/negligent action pursuant to:

  1. The Occupational Health and Safety Act for an employer’s failure to conduct a reasonable investigation into complaints of workplace harassment;
  • The Workplace Safety and Insurance Board for mental stress injuries related to work, including as a result of workplace harassment; and,
  • The Ontario Human Rights Code for harassment, whether intentional or not, if the harassing conduct is connected to a protected ground.

If you believe you are dealing with harassment in the workplace or have questions relating to any of the above, please contact Toronto employer lawyers at Sultan Lawyers by telephone at 416-214-5111, by email at mlahert@sultanlawyers.com, or by filling out the form below.


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