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:

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 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...