Canada: Superior Court Recognizes Tort Of Harassment

Merrifield v The Attorney General, 2017 ONSC 1333



In Merrifield v The Attorney General of Canada, 2017 ONSC 1333, the Ontario Superior Court of Justice recognized harassment as a tenable cause of action.

In this case, the Plaintiff is employed by the Royal Canadian Mounted Police ("RCMP"). He alleged that after participating in a Barrie nomination meeting for the Progressive Conservative Party in 2005 his superiors made certain unjustified and unwarranted decisions about him based on allegations that had no merit. The RCMP accused him of committing criminal offences and subjected him to a groundless internal investigation. He further pleaded and testified that his superiors harassed and bullied him; they had damaged his reputation, impaired his career advancement, and caused him to suffer severe emotional distress including depression. The Plaintiff claimed damages for harassment, among other heads of damages.

Of note, the Plaintiff did not allege a violation of the Human Rights Code when claiming damages for harassment. His claim was against the defendants for committing the common law tort of harassment.

After analyzing past case law, Vallee J. determined that the tort of harassment does exist and has been recognized as a cause of action in Ontario. Vallee J. determined that the appropriate test for the tort of harassment is found in McHale v Ontario, 2014 ONSC 5179, and McIntomney v Evangelista Estate, 2015 ONSC 1419:

  1. Was the conduct of the defendants toward the Plaintiff outrageous?
  2. Did the defendants intend to cause emotional stress or did they have a reckless disregard for causing the Plaintiff to suffer from emotional stress?
  3. Did the Plaintiff suffer from severe or extreme emotional distress?
  4. Was the outrageous conduct of the defendants the actual and proximate cause of the emotional distress?

The Definition of "Outrageous" conduct

Vallee J. analogized the requirement for "outrageous" conduct with the requirement that the conduct be "outrageous and flagrant" in establishing intentional infliction of mental suffering. Vallee J. referenced the decision in Boucher v Wal-Mart Canada Corp., 2014 ONCA 419, in which the court found flagrant and outrageous conduct when the plaintiff's supervisor "belittled, humiliated and demeaned the plaintiff continuously and unrelentingly, often in front of co-workers, for nearly six months".

The Definition of "Reckless Disregard"

Vallee J. adopted the definition of "reckless" from Piresferriera v. Ayotte, 2010 ONCA 384: "'proceeding in the face of subjective awareness that harm of the kind that resulted was substantially certain to follow . . . [the] consequences must be known by the actor to be substantially certain to follow'". Vallee J. further stated that "intention does not necessarily stem from or follow foreseeability" and that there remains a high threshold for constructive intention.

The Definition of "Severe or Extreme Emotional Distress"

Vallee J. adopted the definition of "severe or extreme emotional distress" which was established in Mainland Sawmills Ltd. v IWA-Canada, Local 1-3567 Society, 2006 BCSC 1195: "'[s]evere emotional distress of such substantial quantity or enduring quality that no reasonable person in a civilized society should be expected to endure it'".

The Facts of the Case and the Court's Analysis

The Plaintiff in this case alleged that he was unjustifiably and punitively transferred out of a position with the RCMP which resulted "in a permanent stain on [his] reputation and career". Vallee J. determined that "[b]ecause of the transfer, other officers took a predictably negative view of [him] based on incorrect assumptions. The repercussions of this transfer followed [him] for years to come".

As a result of the deemed unjustifiable and punitive transfer and the failure of RCMP officers to set the record straight when they had the opportunity to do so, the Plaintiff's fellow RCMP officers assumed the worst of him; he was removed from working national security matters, no longer trusted to work in high-stakes emergency situations. Because of this, Vallee J. determined that the RCMP officers involved were "recklessly indifferent to the effect of the kind of harm that [the Plaintiff] suffered, which they knew was substantially certain to follow".

The RCMP's actions had a significant effect on the Plaintiff. He took a six month sick leave. He became depressed and suffered from stress, dizziness, and nausea. He was scared that he would lose his job. Vallee J. determined that he was suffering from severe or extreme emotional distress.

Within six months of returning to work following his sick leave, the Plaintiff was subjected to an allegation that he had stolen from the RCMP and an internal investigation was conducted. Vallee J. determined that this allegation and subsequent investigation was disingenuous and could have been explained and resolved had the Plaintiff been consulted about the matter.

The RCMP officer involved in the allegations and investigation "had a reckless disregard of causing [the Plaintiff] emotional distress. He knew that [the Plaintiff] being subjected to these very serious allegations would cause him significant further emotional distress. [He] knew that the kind of harm that [the Plaintiff] suffered was substantially certain to follow". The Plaintiff subsequently was off work again for 11 months.

The actions of the RCMP regarding the investigation into the Plaintiff were deemed to be the actual and proximate cause of the Plaintiff's severe emotional distress.

Additionally, the Plaintiff sent emails to commanding officers attempting to resolve the harassment he was being subjected to. His emails did not elicit appropriate responses from the RCMP; they were ignored. Vallee J. found that this was one of the actual and proximate causes of the Plaintiff's severe emotional distress.

Overall, Vallee J. concluded that "the defendants' conduct toward the plaintiff was outrageous. The defendants had a reckless disregard of causing the plaintiff to suffer emotional distress. His emotional distress was severe. The defendants' outrageous conduct was the actual and proximate cause of the plaintiff's emotional distress. The plaintiff has proven the tort of harassment."

The official recognition of this tort in Ontario is something that Plaintiff personal injury lawyers and employers should make themselves aware of. This tort could potentially apply in situations of extreme bullying and clients should be advised that harassment is a tenable cause of action.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.