'Harassment' acknowledged as tort in Ontario

Harassment at work can now stand on its own for legal action
By Marc Kitay
|employmentlawtoday.com|Last Updated: 11/22/2017

The Ontario Superior Court of Justice in Merrifield v. Canada (Attorney General) has acknowledged that “harassment” is a free-standing tort (civil wrong) in Ontario. Prior to this decision, harassment was only actionable in the context of constructive dismissal, breach of the Human Rights Code, reprisal under a specific statute, or bad faith during termination.

The court listed the four factors an employee must prove to substantiate a claim of harassment:

  • Was the conduct of the employer outrageous? The perceived harassment must be “grossly offensive,” and assessed on an objective basis.
  • Did the employer intend to cause emotional stress, or did it have a reckless disregard for doing so? This step does not require the conduct to be intentional, but it must rise above the level of simple negligence.
  • Did the employee suffer from severe or extreme emotional distress? The employee must prove that they suffered distress that “no reasonable person in a civilized society should be expected to endure.”
  • Was the outrageous conduct of the employer the actual and proximate cause of the emotional distress? The employee must prove that the harassment caused the distress. Pre-existing medical conditions, for example, will weaken the employee’s case.

In this case, Peter Merrifield, an RCMP officer, sought a nomination with the Progressive Conservative political party in Barrie, in order to challenge the incumbent as a form of protest. He did not follow proper procedure, and so his superiors falsely accused him of engaging in criminal conduct, launched a baseless investigation against him, damaged his reputation, and impeded his career advancement, all of which caused him to fall into a deep bout of depression.

Following a trial that lasted 1.5 years, the court awarded Merrifield $100,000 for harassment and intentional infliction of mental suffering (along with other damages), although it did not specify how it apportioned that sum. Madame Justice Vallee dedicated 175 pages and nearly 900 paragraphs to explaining her reasons for decision, which lambasted the RCMP for how it treated Merrifield.

Lessons for employers

Employers should have updated harassment policies that are disseminated to all employees and made readily available. All employees, especially management, HR, and anyone with authority over a subordinate, should receive training in order to ensure compliance with the policy. Most importantly, complaints of harassment should be accepted as genuine, and properly investigated.

Lessons for employees

Employees should review the company’s harassment policies, and ask for a copy to retain. An employee claiming emotional distress should seek prompt medical or psychological attention, and should ensure that complaints are submitted in writing, with sufficient detail, and made in a timely manner so that the employer has a reasonable opportunity to investigate.

For more information see:

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

Marc Kitay is an employment and labour lawyer with Whitten & Lublin employment lawyers in Toronto. He can be reached at 1-866-575-3055 or marc@whittenlublin.com.

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