Bad facts make bad law (for employers): Court recognizes new tort of harassment

The Ontario Superior Court recently recognized a new tort that would allow employees to sue their employers for harassment in civil court.

The case

In Merrifield v. The Attorney General, the employee worked for the RCMP in antiterrorist and serious crime policing. The employee alleged that he had been severely mistreated over an extended period of time by his superiors, and eventually transferred out of his job despite good reviews, in part because he ran for political office. He sued for harassment, among various other things.

The Court had to decide whether the tort of harassment existed, and was a recognized cause of action that would allow the employee to recover damages. The Court ruled affirmatively, and found that the elements of the tort were as follows:

1. Outrageous conduct by the defendant;
2. Intention on the part of the defendant to cause emotional distress or the defendant’s reckless disregard for causing emotional distress;
3. The plaintiff’s suffering severe or extreme emotional distress; and,
4. The defendant’s outrageous conduct to be the actual and proximate cause of the emotional distress.

The Court found that the employee had proved all elements of the tort, along with several other causes of action, and awarded him $100,000 in general damages.

The takeaway

The Court’s ruling means that employees can sue their employers for (civil) harassment in civil court. This is a controversial proposition that may be overturned on appeal to a higher court.

For the time being, it is not clear how this new tort will interact with the long-standing tort of intentional infliction of mental suffering. The elements of the torts seem to be very similar. Indeed, the employee in this case pleaded that established tort in addition to harassment, and was successful on both counts for nearly identical reasons.

The Court in Merrifield noted that the two torts overlap, and that the established tort also requires that a plaintiff prove that the defendant’s conduct was outrageous. The Court added that in addition to being outrageous, the defendant’s conduct must also be “flagrant” to make out the tort of intentional infliction of mental suffering.

This appears to be a distinction without a difference, as the Court defines flagrant as “conspicuously or obviously offensive”. The Court cites authorities which define outrageous conduct as deeply shocking and unacceptable, grossly cruel, extreme, and insensitive. It is difficult to imagine outrageous conduct that would not also be obviously offensive and therefore flagrant.

Another difference appears to be that, unlike the established tort, the tort of harassment does not require the plaintiff to show a “visible and provable illness”. Rather, to make out harassment, the plaintiff must show severe emotional distress “of such substantial quantity or enduring quality that no reasonable person in a civilized society should be expected to endure it.”

In reality, it would seem that there is an extremely fine line between emotional upset so severe that it would be compensable, and a “visible and provable illness”. This is especially so in light of the fact that the courts do not require medical evidence to establish a visible and provable illness. In fact, the Supreme Court of Canada recently released a decision affirming that it is not necessary to prove a recognized psychiatric illness in order to recover compensation for mental injury.

As such, we will have to wait and see whether this case is appealed, and how courts handle the tort of harassment in the future. Although the establishment of a new tort is worrying in the employment context, this may simply be a case of bad facts making bad law. The employer’s behavior was outrageous, but the employee could not sue in contract because he was a member of the RCMP and his employment relationship was governed by statute. As such, the employee could not avail himself of the type of contractual damages typically available in such cases, and the Court may have been more receptive to compensating him through unconventional means.

To find out more about how the new tort of harassment in the employment law context, register to Learn the Latest® at the Ontario Employment Law Conference.