Court Exorcises Tort
Tech sector employers take notice: harassment is not a tort. At least, for now.
Torts are wrongful acts that attract liability in civil courts. Torts such as defamation and wrongful termination and familiar in the employment context but a new tort of harassment would have created a hazard for employers and a new opportunity for relief for employees.
On March 15, 2019, the Ontario Court of Appeal released its judgement in the case of Merrifield v. Canada (Attorney General).
The Court of Appeal’s rejection of harassment as a tort is good news for employers, like those in the tech industry with non-traditional employer/employee relations, who may be at risk of their managerial discretion being construed as managerial harassment.
Beginning in 2005, RCMP officer Peter Merrifield experienced several work unit transfers and faced scrutiny over unauthorized media appearances. In 2006 he was audited and investigated for his corporate credit card use and found to have violated the RCMP’s credit card use policy.
As a result of this, Mr. Merrifield launched a civil action against the Crown alleging, among other things, that the conduct was managerial bullying and harassment.
After a 40-day trial held over a period of 17 months the lower court judge found that the tort of harassment existed, was proven, and awarded Mr. Merrifield $100,000 in general damages, $41,000 in special damages and $825,000 in legal costs.
The Court of Appeal overturned that award and found no reason to recognize the tort of harassment.
The Court of Appeal found that employees experiencing managerial harassment have other avenues of recovery where their employer’s conduct is so egregious as to cause harm. In the alternative, the tort of ‘Intentional Infliction of Mental Distress’ (IIMD) may be claimed by anyone – including harassed employees.
The Court found that Mr. Merryfield did not meet the burden of proof in a claim for IIMD.
While Harassment can still attract liability under the Criminal Code, the Ontario Human Rights Code, and the Occupational Health and Safety Act, the Court of Appeal is saying it does not belong in civil claims. This is good news for employers. While they are still exposed to claims for the IIMD, the Court of Appeal affirmed that this demands a high threshold of proof and any successful claim of IIMD must show that the conduct was:
flagrant and outrageous,
calculated to produce harm, and which
results in visible and provable illness.
Courts are cautious to recognize new torts unless the underlying facts of the case cry out for a new legal remedy.
That said, the Court of Appeal did not completely shut the door on the tort of harassment and specifically stated that they, “do not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts.”
Until that day, employers in the tech industry and beyond can rest easy knowing that the tort of harassment will not be a consideration in assessing the reasonableness of their managerial decisions.
There is no word yet on whether this decision will be appealed to the Supreme Court of Canada.
David is an Associate Lawyer with our Business and Financial Services, Employment and Labour Law and our Technology and Privacy Law Groups. Connect with David on LinkedIn.