Harassment will (literally) cost you

Ontario Superior Court decision affirms separate tort of harassment
By Kelsey Orth
|employmentlawtoday.com|Last Updated: 05/18/2017

In Ontario, the introduction of "Bill 168" — or, more accurately, its subsequent coming into force — ushered in a new era in workplace dynamics. While the codification of harassment in the Occupational Health and Safety Act­ has given employees additional protection, it has also given rise to a sometimes-misplaced sense from employees that every action in the workplace that doesn’t go exactly their way is imbued with harassment.

Unfortunately — and regardless of the facts or merits of this particular case — a recent decision of the Ontario Superior Court will do little to stem the rising tide of harassment complaints with which employers find themselves dealing.

In the lengthy decision of Justice Vallee in Merrifield v. the Attorney General, the court has now recognized a separate and new tort of harassment; in other words, an employer (or, presumably a co-worker) can be sued for separate damages if a claim of harassment is proven.

In this case, Peter Merrifield was an RCMP officer who worked in various capacities during his tenure, including anti-terrorism and as an Air Marshall. He also had an interest in politics, participating in nomination conventions and running as a candidate in a federal election.

Despite several positive performance evaluations, the facts of the case indicate that Merrifield’s relationship with his superiors deteriorated significantly, eventually resulting in a transfer. This transfer was determined by the court to be "unjustified and punitive."

In another instance, the Court decided that his superiors at the RCMP were "recklessly indifferent" to the harm that their actions would cause, when Merrifield was apparently denied participation in an anti-terrorism group deployment based on what amounted to rumours circulating within the organization.  The court found that Merrifield’s subsequent medical leave and stress and anxiety were a result of that action, and that his superiors were or should have been substantially certain that harm would happen.

Based on these facts (and many others), the court determined that someone can sue for harassment if he or she meets the following four-part test:

  • Was the conduct of the defendant(s) outrageous?
  • Did the defendant(s) intend to cause emotional stress or did they have a reckless disregard for causing the plaintiff to suffer from emotional stress?
  • Did the plaintiff suffer from severe or extreme emotional distress?
  • Was the outrageous conduct of the defendant(s) the actual and proximate cause of the emotional distress?

In this case, the court decided that the above test was made out: the employer's conduct towards Merrifield was outrageous; it had a reckless disregard for causing him to suffer emotional distress; his emotional distress was severe; and, finally the employer's outrageous conduct was the cause of Merrifield’s emotional distress.

Given its findings with regard to all four parts of the test, the court ordered the RCMP to pay Merrifield $100,000 to compensate for the harassment and mental suffering he experienced.

As always, employers faced with a harassment complaint are obligated to take such complaints seriously and properly investigate. This latest wrinkle — the addition of a new and separate tort of harassment —also underscores the need to properly review decisions and actions that can affect an employee’s life in the workplace.

For more information see:

• Merrifield v. Canada (Attorney General), 2017 CarswellOnt 2927 (Ont. S.C.J.).

Kelsey Orth is an associate practicing employment and labour law with CCPartners in Brampton, Ont. He can be reached at (905) 874-9343 ext. 225 or korth@ccpartners.ca.

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