The Ontario Superior Court has recently ruled that employees can bring an independent civil action in relation to workplace harassment that is unrelated to another legal right or protection.
Until recently, employees dealing with workplace harassment were generally restricted to:
- Suing or filing a human rights application for harassment related to unlawful discrimination;
- Filing a complaint with the appropriate government agency about workplace harassment that violated health and safety or harassment laws; or
- Suing for constructive dismissal based on harassing conduct, meaning that the employee was essentially forced to end the employment relationship.
However, in Merrifield v Attorney General (2017 ONSC 1333) (“Merrifield”) the Ontario Superior Court of Justice introduced a new freestanding basis to sue for workplace harassment when it allowed an employee’s claim against his employer and two superiors for the tort of harassment and awarded significant damages against the defendants.
The decision not only clarifies both employer responsibility and liability with respect to harassment at work, but it also opens the possibility that employees could bring a non-human rights based harassment claim while being employed, rather than needing to simultaneously claim that their employment is terminated.
In Merrifield the plaintiff, a Royal Canadian Mounted Police (“RCMP”) member since 1998, had been involved in national security investigations and obtaining convictions in high profile prosecutions. He brought a civil claim alleging that his superiors harassed and bullied him. He claimed, in particular, that his superiors made unjustified and unwarranted decisions about him because he sought nomination as a federal Progressive Conservative candidate in 2005. The plaintiff claimed to suffer:
- Demeaning comments;
- Unwarranted investigation;
- The tarnishing of his reputation; and
- A disciplinary transfer.
While the plaintiff raised his concerns with his superiors, the RCMP did not respond.
Test for Harassment and the Decision
The defendants took the position that there is no freestanding tort of harassment, relying on prior caselaw including the Ontario Superior Court of Justice’s 2012 decision in Desjardins v Society of Obstetricians and Gynecologists of Canada et al. However, in a lengthy 900 paragraph decision, the Court held that harassment can be a cause of action in Ontario and outlined the following test for the tort:
- Was the conduct of the defendants toward the employee outrageous?
- Did the defendant intend to cause emotional stress, or did they have a reckless disregard for causing the employee to suffer emotional distress?
- Did the employee suffer from severe or extreme emotional distress?
- Was the outrageous conduct of the defendant the cause of the emotional distress?
The trial judge found that each branch of the test for harassment had been proven and awarded the plaintiff $100,000 in general damages and $41,000 in special damages for income lost due to career setbacks.
While the decision is currently being appealed, it is still significant as it represents an expansion of employer liability in relation to workplace harassment. Whereas previously employees had to claim constructive dismissal and essentially walk away from their employment before suing for harassment, the Merrifield decision provides employees with the option of suing for harassment while remaining employed. Employers can now be subject to a civil lawsuit from employees for harassment and if the test for harassment is met, those employers can be liable to pay damages.
The Merrifield decision also highlights the importance of properly responding to complaints of harassment and proactively preventing workplace harassment all together. Employers should review and update their workplace harassment policies and procedures on a regular basis to ensure compliance with the law. Following a proper workplace harassment program can help employers prevent situations from rising to the threshold necessary to constitute the tort of harassment.
Written by Kristine Gorman, Associate
For more information about managing and preventing harassment in the workplace, please contact Sharaf Sultan at email@example.com, Krista Kais-Prial at firstname.lastname@example.org or Kristine Gorman at email@example.com, or directly at 416-214-5111.
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