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Ontario Superior Court Recognizes Workplace Harassment as Independent Cause of Action

In a recent case titled Merrifield v. Canada (Attorney General), the Ontario Superior Court of Justice affirmed that the tort of harassment is a valid cause of action and may be pleaded against an employer by an employee.

In this case, the plaintiff was a successful member of the RCMP and dealt with a series of harassment following a run for the Progressive Conservative Party in 2005. The Court ultimately found that members of the RCMP had bullied the plaintiff, tarnished his reputation and caused him serious emotional distress including depression. In awarding the plaintiff with $100,000.00 in general damages, Justice Vallee verified the existence of the "tort of harassment" in Canadian jurisprudence and set out its necessary elements 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.

In this 900-paragraph decision, Justice Vallee acknowledged that there is overlap between this tort and the tort of intentional infliction of mental suffering. However, the tort remained valid, as there are still significant differences. For instance, the tort of harassment does not require the plaintiff's emotional distress to be medically proven nor does the defendant's conduct have to be flagrant, that is, conspicuously or obviously offensive.

What does this mean for employers? This means that employees will now have a cause of action outside of that which is already provided by the Human Rights Code for workplace harassment. This cause of action will follow the principles for damages in tort law and can result in much heftier awards then an action under the Human Rights Code.

In order to avoid being subject to this tort, employers will need to be strictly mindful of anywhere that workplace harassment may exist. This includes developing a vigorous workplace harassment program and ensuring that a thorough and complete investigation into any harassment complaint is readily conducted.

As for employees, the Human Rights Code had always provided a means for obtaining compensation where harassment is proven in the workplace, but you may now be comforted by the fact that this new tort can provide an additional cause of action that may be more suitable for those instances where the harassment is on the extreme side of the spectrum.

This decision is currently being appealed, so the tort of harassment may not be set in stone just yet, but we will be sure to follow up on how the appeal decision plays out.

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