Update: Employer Civil Liability for Workplace Violence, Bullying, or Harassment

In a precedent-setting decision issued in 2017, Justice Vallee of the Ontario Superior Court of Justice ruled that an employee named Constable (Cst.) Merrifield was entitled to damages because he was harassed in the workplace by his superiors at the RCMP. In March 2019, the Court of Appeal rejected the decision made by Justice Vallee, ruling against the creation of a new tort of harassment. While this ruling protects employers from facing civil liability for the tort of harassment for now, they still have significant legal exposure in the event of workplace harassment under the Ontario Human Rights Code and the Occupational Health and Safety Act.

Superior Court Ruling Resulted in Significant Damages Awarded to Merrifield

The alleged harassment took place over a seven-year period beginning upon his participation in a nomination meeting for the Progressive Conservative party in 2005. Cst. Merrifield claimed that his superiors made unjustified and unwarranted decisions about him. He further contended that he was punitively transferred, had his reputation tarnished via the circulation of rumours regarding his conduct and integrity, and that his superiors intentionally manifested an atmosphere designed to isolate and humiliate him. Furthermore, Cst. Merrifield alleged that he was lied to, unduly audited, and faced baseless allegations of breaching the Code of Conduct and the Official Secrets Act.

Following a 40-day trial which spanned over 17 months, significant damages were awarded against the defendant employer, the RCMP. Cst. Merrifield was awarded $100,000 in general damages, $41,000 in special damages, and $825,000 (not a misprint!) in costs of the action.

When the original ruling was made, we summarized the potential ramifications facing employers across the province. Specifically, the Superior Court in Merrifield ruled that harassment could effectively be treated as an independent actionable wrong for which an employer could be civilly liable.

Under current Ontario law, an employer cannot face civil liability resulting from a workplace harassment claim made through Ontario’s tort law system. Prior to Justice Vallee’s decision, an employee was not entitled to claim a remedy in tort because of harassment in the workplace. The Superior Court’s Decision in Merrifield purported to change all of that. Further, civil liability for the new “tort of harassment” would have been in addition to existing civil liability already facing employers under Ontario’s Human Rights Code, the Workplace Safety Insurance Act, and other statutory obligations under the Occupational Health and Safety Act.

The RCMP appealed Justice Vallee’s decision to the Ontario Court of Appeal. In March 2019, the Court of Appeal rejected Justice Vallee’s decision in Merrifield v. Canada (Attorney General), 2019 ONCA 205. The Court of Appeal, however,  did not eliminate the possibility that the “tort of civil harassment”, or a substantially similar tort, could be created in the future.

Trial Decision

At trial, Justice Vallee created a four stage test for establishing the civil tort of harassment. As per the Superior Court’s ruling, each of the four constituent elements of the tort would have to be proven for a claim for damages to be substantiated: 

  1. Was the conduct of the defendant(s) towards the plaintiff outrageous?
  2. Did the defendants intend to cause emotional stress or did they have a reckless disregard for causing the plaintiff to suffer from emotional distress?
  3. Did the plaintiff suffer from severe or extreme emotional distress?
  4. Was the outrageous conduct of the defendants the actual and proximate cause of the emotional distress? 

Based on the facts in Cst. Merrifield’s case, Justice Vallee found that each of the criteria were proven. Cst. Merrifield was thereby able to establish a claim for damages against the RCMP for negligence. These damages were grounded in the consistent disregard for the wellbeing of Cst. Merrifield by his superior officers. This disregard included impairing his career advancement, causing emotional distress (which manifested in depression), and creating a culture of intimidation in the workplace.

Court of Appeal Rules Against the Creation of a New Tort of Harassment

The Ontario Court of Appeal concluded that Justice Vallee should not have created and applied the tort of harassment to the facts before her. The Court reviewed principles from case law, ruling that the law did not permit Justice Vallee to recognize the existence of a tort of harassment in Ontario, nor did it authorize the Trial Judge to establish either a new tort of harassment (or its requisite elements).

In ruling against the creation of a new tort of harassment, the Court of Appeal made several observations regarding the state of the law in Ontario including:

  • While it could be within the purview of a judge to aid in the development of a new law, the creation of a new tort was an exercise best left to elected officials in the legislature; and
  • Justice Vallee was not presented with judicial authority which supported the development of a new tort.

The Court acknowledged that in the recent past it had “recognized” another tort, namely the tort of “intrusion upon seclusion” (in other words, the invasion of privacy). The Court of Appeal differentiated the circumstances in Merrifield from those of Jones (Jones v Tsige, 2012 ONCA 32). The Court of Appeal ruled that Jones was best understood as a culmination of various legal developments within legal precedents and parallel statutes (including federal privacy legislation). By contrast, in Merrifield there were insufficient links to statutory rules or precedents in case law which could form a foundation for the tort of harassment.

Key Takeaways for Employers

The Ontario Court of Appeal’s recent decision should serve as a welcome relief for employers who might otherwise have faced civil liability for the tort of harassment. Make no mistake, however – an employer’s potential exposure in the event of any sort of harassment at the workplace remains extensive. 

Legal remedies under the Ontario Human Rights Code (including damages for injury to dignity, feelings and self-respect) remain available to employees who feel they may have been discriminated against or harassed in the workplace. More recently, the term “accidents” has been expanded to include mental stress claims under Ontario’s Workplace Safety and Insurance Act and WSIB policies that relate to Chronic and/or Traumatic Mental Stress. These sources of liability remain in effect and continually incentivize employers to take positive steps to curb any possibility of harassing, violent or discriminatory behaviour.

As always, prevention appears to be the most cogent and effective strategy when it comes to minimizing liability under existing sources of exposure under the Human Rights Code, the Occupational Health and Safety Act, and the Workplace Safety and Insurance Act. Employers should ensure, at an absolute minimum, that consistent reviews of health and safety policies and training protocols are undertaken to prevent harassment in the workplace and provide training for all employees consistent (at a minimum) with current statutory requirements. 

In accordance with the Ontario Occupational Health and Safety Act as well as the Ontario Human Rights Code, employers must also fulfill their obligations to properly investigate claims of harassment. These basic actions should be supplemented by on-the-ground efforts of Human Resources Professionals to maintain rapport with employees who may feel uncomfortable bringing forward incidents of harassment. 

Circling back to the Court of Appeal’s decision in Merrifield, the plaintiff, Cst. Merrifield, has been outspoken regarding his position that the tort of harassment ought to be created due to an “increased societal recognition that harassment is wrongful conduct”. Time will tell whether Cst. Merrifield will seek leave to appeal the Court’s decision to the Supreme Court of Canada. As always, we will provide ongoing coverage should this case proceed to Canada’s highest Court.

Lucas Triemstra is a Student-at-Law at LeClair and Associates P.C. He supports an exclusive management side labour and employment practice, focusing on all aspects of HR law. Lucas has a particular interest in legal issues related to health and safety in the workplace, workplace accommodations and employee relations.

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