Introduction

Can a Canadian employee sue an employer for harassment which is unrelated to a discrimination claim? The answer used to be no; but this is changing.

In most jurisdictions across Canada, an employee could:

  • sue or file a human rights application for harassment relating to unlawful discrimination;
  • file a complaint with the appropriate government agency about workplace harassment that violates health and safety or harassment laws; or
  • sue for constructive dismissal based on harassing conduct.

However, until recently, an employee could not usually sue an employer for harassment that was unrelated to another legal right or protection.

In Merrifield v Attorney General (2017 ONSC 1333) the Ontario Superior Court of Justice introduced a new, freestanding basis to sue for workplace harassment. Employers should take note.

Facts

Merrifield was an officer of the Royal Canadian Mounted Police (RCMP). He said that his supervisors harassed him after he sought to be nominated to run in an election as a candidate for the Progressive Conservative Party.

Merrifield said that he suffered:

  • demeaning comments;
  • unwarranted investigation;
  • the tarnishing of his reputation; and
  • a disciplinary transfer.

He raised his concerns with superiors; however, the RCMP did not respond. Merrifield then sued his employer for harassment, among other things.

Decision

The court had to decide whether Merrifield could sue for harassment. This was not the first time the issue had been raised – in 2006 a British Columbia court decided that it could be done, and at least two Ontario cases since then have applied this decision.

On that basis the court decided that Merrifield could sue for harassment, saying the following four questions were to be answered affirmatively in order to prove harassment:

  • Was the conduct of the defendants towards the employee outrageous?
  • Did the defendants intend to cause emotional stress, or did they have a reckless disregard for causing the employee to suffer emotional stress?
  • Did the employee suffer from severe or extreme emotional distress?
  • Was the outrageous conduct of the defendants the cause of the emotional distress?

The court answered yes to all four questions and therefore awarded Merrifield C$100,000 in damages for harassment and intentional infliction of mental suffering. The RCMP has appealed.

Comment

Unless and until the appeal is allowed, employers can be subject to a civil lawsuit from employees for harassment. If the four-point test is proven, an employer is liable to pay damages. This is in addition to any complaints that may be brought under human rights laws for harassment relating to unlawful discrimination, and to complaints made under health and safety or general harassment laws in effect in various jurisdictions.

The case also highlights the importance of proactively preventing harassment and effectively discharging a duty to respond to complaints of harassment. If the RCMP had investigated and, if necessary, taken appropriate corrective action when Merrifield first complained, this lawsuit may never have happened.

Employers should review and, if necessary, update training, policies and procedures for preventing harassment, investigating complaints and reporting the results of any investigations.

This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.

For further information on this topic please contact Shane D Todd at Fasken Martineau DuMoulin LLP by telephone (+1 416 366 8381) or email (stodd@fasken.com). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.

Geoff Tadema assisted in the preparation of this update.

This update was reprinted with permission from Northern Exposure, a blog written by lawyers in the labour, employment and human rights group at Fasken Martineau, and produced in conjunction with HRHero.com.