Dear Colleagues:

Those interested in the judicial method and/or tort claims surrounding harassment at work will be interested in Merrifield v. Canada (Attorney General), 2019 ONCA 205 (https://www.canlii.org/en/on/onca/doc/2019/2019onca205/2019onca205.html). At issue was whether the Court of Appeal for Ontario should recognize the existence of the tort of harassment (which was applied by the trial judge to award substantial damages to the plaintiff), or alternatively whether the facts met the more well established INTENTIONAL INFLICTION OF MENTAL SUFFERING (IIMS) tort.

According to the trial judge, the elements of the tort of harassment were as follows:

1. Was the conduct of the defendants toward the plaintiff outrageous?

2. Did the defendants intend to cause emotional distress or did they have a reckless disregard for causing the plaintiff to suffer from emotional distress?

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?

After finding that current authority, other than the trial judge’s decision, did not support the existence of this new tort, the court examined whether it should take that step:

[37]  Given that authority does not support the existence of a tort of harassment, should this court nevertheless recognize such a new tort?

[38]  To pose the question in this way is to suggest that the recognition of new torts is, in essence, a matter of judicial discretion – that the court can create a new tort anytime it considers it appropriate to do so. But that is not how the common law works, nor is it the way the common law should work.

[39]  At the outset, it is important to recognize that this is not a case like Tsige, which, as we have said, is best understood as a culmination of a number of related legal developments. As we have explained, current Canadian legal authority does not support the recognition of a tort of harassment.

[40]  We were not provided with any foreign judicial authority that would support the recognition of a new tort. Nor were we provided with any academic authority or compelling policy rationale for recognizing a new tort and its requisite elements.

[41]  This is not a case whose facts cry out for the creation of a novel legal remedy, as in Tsige. That case concerned a highly significant intrusion into the plaintiff’s personal information. The defendant, who was in a relationship with the plaintiff’s former husband, used her workplace computer to gain access to the plaintiff’s banking records and personal information over a period of several years – actions the court found to be deliberate, prolonged, and shocking. Discipline imposed on the defendant by her employer did not redress the wrong done to the plaintiff. In these circumstances, as Sharpe J.A. put it, “[T]he law of this province would be sadly deficient if we were required to send [the plaintiff] away without a legal remedy.”

[42]  That is not this case. In this case, there are legal remedies available to redress conduct that is alleged to constitute harassment. The tort of IIMS is one of these remedies …

[43]  In summary, the case for recognizing the proposed tort of harassment has not been made.

In relation to IIMS, the court held that it requires a plaintiff to establish that the defendant’s conduct:

1) was flagrant and outrageous;

2) was calculated to harm the plaintiff; and

3) caused the plaintiff to suffer a visible and provable illness.

On the facts on the case, the court held that the actions of the plaintiff’s supervisor were not flagrant and outrageous and that there was no proof offered that the actions of the supervisor were intended to harm the plaintiff.

In addition, to the above, there are some interesting discussions abut Jones v Tsinge and how IIMS fits with Sadaati v Morrehead, which I will leave to those who are interested to discover.

Sincerely,

Jason Neyers
Professor of Law
Faculty of Law
Western University
Law Building Rm 26
e. jneyers@uwo.ca
t. 519.661.2111 (x88435)