In Merrifield v. The Attorney General of Canada et al., the Ontario Superior Court of Justice recently reconfirmed the existence of the standalone tort of harassment. In this case, the Plaintiff (an officer with the Royal Canadian Mounted Police) brought suit on several different grounds seeking damages for harassment, intentional infliction of mental suffering, loss of income and general damages. He alleged he was the victim of unjustified employment decisions that were based on meritless allegations, was denied work opportunities, was accused of criminal offences, and was subject to groundless internal investigations. As a result, the Plaintiff alleged he suffered damage to his reputation, impairment of career advancement, and emotional distress, including depression.
In deciding partly in favour of the Plaintiff, the Court addressed the issue of whether or not the conduct against the Plaintiff constituted harassment and whether in Ontario, harassment is recognized as a tort upon which a civil cause of action may be based. The Court found that the tort is recognized and that Plaintiff proved the harassment.
In this case, the Plaintiff did not allege any misconduct based on any prohibited ground of discrimination (e.g. race, creed, sex, age, etc.) or any other violation of applicable human rights law.
The Court was satisfied that the tort of harassment does exist as a recognized cause of action in Ontario, and ruled that the test for harassment finds voice in the following four questions:
- Was the conduct of the Defendants toward the Plaintiff outrageous?
- Did the Defendants 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 Defendants the actual and proximate cause of the emotional distress?
The Court answered “yes” to all four questions, noting that the tort of intentional infliction of mental suffering overlaps somewhat with the tort of harassment.
The Court confirmed that the test for intentional infliction and mental suffering has three elements: The conduct of the Defendants must be (a) flagrant and outrageous; (b) calculated to harm the Plaintiff; and (c) must have caused the Plaintiff to suffer a visible and provable illness. (See Strudwick v. Applied Consumer & Clinical Evaluations 2016 ONCA 520). One difference between the test for harassment and the test for intentional infliction of mental suffering is that in addition to being outrageous, the conduct resulting in intentional infliction of mental suffering must also be flagrant. The other difference is that the Plaintiff must show that he suffered a visible and provable illness (although that can be achieved notwithstanding the absence of medical evidence, as in Merrifield). On the evidence, the Court found the Plaintiff suffered from depression and post-traumatic stress disorder as a result of the actions of the Defendants and that the Plaintiff also proved the tort of intentional infliction of mental suffering. As a result, the Court ordered total damages of $100,000 for both torts. The Court dismissed other claims, including claims for breach of fiduciary duty, punitive damages and aggravated damages.
The Merrifield case has been appealed to the Ontario Court of Appeal. We await that Court’s decision on whether the standalone tort of harassment will be recognized going forward.