As if having liability for harassment in the workplace under the Human Rights Code and its sixteen prohibited grounds of discrimination, as well as liability for harassment in the workplace under the Occupational Health & Safety Act (OHSA) wasn’t enough, employers in Ontario now need to be concerned about being sued civilly for “the tort of harassment”.

In Merrifield v. The Attorney General 2017 ONSC 1333, after much equivocation in the cases about the existence of a freestanding tort of harassment, the Superior Court of Justice awarded $100,000 in damages to a senior RCMP officer who was found to have been harassed by a series of decisions made in respect of his career by his superiors in the force.

The court stated that the following four items constituted the elements of the tort of harassment:

• outrageous conduct by the defendant;
• intention on the part of the defendant to cause emotional distress or the defendant’s reckless disregard for causing emotional distress;
• the plaintiff’s suffering of extreme or severe emotional distress; and
• the defendant’s outrageous conduct is found to be the actual or proximate cause of the emotional distress.

Given the use of words like “outrageous”, “severe” and “extreme” to describe the elements of the tort, it is not likely that many employment cases will contain the facts necessary to support a finding of liability on the basis of this new tort.

Liability in the Merrifield case for the $100,000 damages award was also based on the tort of intentional infliction of mental suffering which is a cause of action which has existed for many years. It is not clear why the judge felt it necessary to expand the basis for liability to include the new tort of harassment.

It is likely that this case will be appealed to the Court of Appeal.  Employers will be watching the course of this case closely.