By: Kimberly Smith
In a recent ruling, Merrifield v Canada (Attorney General), 2019 ONCA 205, the Court of Appeal reversed a lengthy trial court decision that boldly created a free-standing tort of harassment.
The trial decision was significant because it was the first to recognize the tort of harassment as an independent cause of action in Ontario.
Mr. Peter Merrifield (“Mr. Merrifield”), the Plaintiff at trial, was employed by the Royal Canadian Mounted Police (“RCMP”). His relationship with the RCMP became strained when his superior officers learned that he had run for nomination to be the Conservative Party’s candidate in the riding of Barrie. They alleged that he failed to comply with RCMP regulations, thereby creating a conflict of interest.
The trial judge found that there was authority for the existence of the tort of harassment in Ontario, and that it had been made out on the facts of the case. She concluded that many of the managerial decisions made in relation to Mr. Merrifield, including rejecting his explanation for failing to advise the RCMP that he was running for the Conservative Party, as well as his transfer out of the Threat Assessment Group (TAG) based on a potential (and in her view unfounded) conflict of interest, constituted harassment. She awarded Mr. Merrifield $140,000.00 in general and special damages.
The Court of Appeal rejected the notion that the tort of harassment existed at common law. Drawing on a Supreme Court of Canada decision, Watkins v Olafson,  2 SCR 750, the Court of Appeal outlined some of the principles underpinning the evolution of the common law:
- Common law change is evolutionary in nature: it proceeds slowly and incrementally, rather than quickly and dramatically;
- Change should be based largely on the mechanism of extending existing principles to new circumstances; and
- Generally speaking, the judiciary is bound to apply the rules of law found in legislation and in precedent.
The existence of remedies to address the alleged conduct was a significant factor in the Court’s conclusion that this was not an appropriate case in which to found the creation of a tort of harassment. In this regard, the Court of Appeal pointed to the availability of the tort of intentional infliction of mental suffering. The Court noted some differences between the proposed tort of harassment and the tort of intentional infliction of mental suffering. Namely, that the former was negligence-based and required objectively defined reckless disregard, while the latter required the intention to cause harm. The Court acknowledged that meeting the test for the tort of intentional infliction of mental suffering was more onerous given its subjective elements (a burden that had not been met on the facts of the case).
The creation of the proposed tort of harassment would possibly open the door to the advancement of legitimate claims that fail to meet the more onerous test for the intentional infliction of mental suffering. However, the fact is that Courts take a measured and conservative approach to common law changes, and recognize the enactment of legislation as the most appropriate, though not the only, mechanism for significant changes to the law. In this instance, the Court of Appeal was of the view that, as they put it, “this is not a case whose facts cry out for the creation of a novel legal remedy …”
Author - Extraordinary Damages in Canadian Employment Law