Carfra Lawton LLP | Victoria BC

No Independent Tort of Harassment – Yet?

In Merrifield v. Canada (Attorney General), 2019 ONCA 205, the Ontario Court of Appeal was the first Canadian appellate court asked to determine whether a common law tort of harassment exists in Canada. Its answer was no.

Mr. Merrifield was an RCMP officer who claimed he had been bullied and harassed by his superior officers, negatively affecting his career and causing him emotional distress. He sued the RCMP seeking damages. The trial judge ruled in his favour, finding that the tort of harassment exists in Ontario and that its elements were established.

However, on appeal the Court held the trial judge had erred, both in concluding that a tort of harassment exists and was met, and in finding that the elements of the existing tort of Intentional Infliction of Mental Suffering had been established. The Court of Appeal overturned the trial judgment.

Mr. Merrifield had argued for the creation of the new tort on the basis that there is an increased societal recognition that harassment is wrongful conduct. He argued that, in the employment context, moral damages for mental distress can only be currently awarded on termination, leaving a gap that the tort of harassment should fill. The Court of Appeal disagreed. While it did not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts, the Court held that the facts of this case did not cry out for the creation of a novel legal remedy. As such, there was no basis in this case for it to recognize a new tort of harassment.

Mr. Merrifield has sought leave to appeal to the Supreme Court of Canada.

Case law summary by Andrew Buckley