The Ontario Court of Appeal recently overturned a decision that had recognized a new tort claim for harassment made by an employee.

What Happened?

The employee had started working for the Royal Canadian Mounted Police (“RCMP”) in 2005 as a junior RCMP Constable. He was promoted to Corporal in 2009 and Sergeant in 2014.

Despite these promotions, the employee claimed that his strained relations with RCMP management began in May 2005, which eventually led him to commence an action against the Crown, on behalf of the RCMP, and several individual RCMP members (together, the “appellants”) seeking damages for the mental distress he suffered as a result of managerial bullying and harassment. The case went to trial from 2014 to 2016 and the decision was released in 2017.

The trial judge’s decision reviewed in considerable detail more than seven years of strained relations between the employee and several of his superiors in the RCMP. In allowing the action, the trial judge recognized a new freestanding tort of harassment and found that many of the managerial decisions made in relation to the employee constituted harassment. In addition, she found the appellants liable for intentional infliction of mental suffering in relation to one set of interactions.

The trial judge found that the appellants had a reckless disregard for whether their behaviour would cause the employee to suffer from emotional distress; that the employee suffered severe emotional distress; and that the appellants’ outrageous conduct was the actual and proximate cause of his emotional distress.

The trial judge awarded the employee $100,000 in general damages, $41,000 in special damages, and $825,000 in costs of the action. The appellants appealed.

Court of Appeal Decision

The main question in this case was whether the trial judge was correct in recognizing a new tort and thereby creating a “tort of harassment”.

The court reviewed the cases relied on by the trial judge in support of the existence of the tort of harassment and establishing its elements. The court concluded that, taken as a whole, those cases confirmed neither the existence of the tort nor its elements. It found that those cases made an assumption that such a tort existed, but did not confirm the existence of the tort in law. It came to the same conclusion regarding the elements of the tort, finding that they had been assumedin the caselaw, rather than proving their existence. The court concluded:

“This is the extent of the authority cited in support of the existence of the tort. In sum, these cases assume rather than establish the existence of the tort. They are not authority for recognizing the existence of a tort of harassment in Ontario, still less for establishing either a new tort or its requisite elements.”

Given that authority did not support the existence of a tort of harassment, the court then considered whether it should nevertheless recognize such a new tort. At the outset the court stated:

“To pose the question in this way is to suggest that the recognition of new torts is, in essence, a matter of judicial discretion – that the court can create a new tort anytime it considers it appropriate to do so. But that is not how the common law works, nor is it the way the common law should work.”

The court then explained that current Canadian legal authority did not support the recognition of a tort of harassment, nor had any foreign judicial authority been provided that would support the recognition of a new tort. It further stated that no academic authority or compelling policy rationale had been presented to support the recognition of a new tort and its requisite elements. The court concluded:

“This is not a case whose facts cry out for the creation of a novel legal remedy. […] In this case, there are legal remedies available to redress conduct that is alleged to constitute harassment. The tort of [intentional infliction of mental suffering]is one of these remedies.”

As a result, the court found that case for recognizing the proposed tort of harassment had not been made. The court further found that the trial judge had made palpable and overriding errors in the finding and award for intentional infliction of mental suffering.

The Court of Appeal therefore found that the trial judge erred in concluding that the tort of harassment existed in Ontario and in concluding that the tort of intentional infliction of mental suffering had been made out. The court allowed the appeal and awarded costs to the appellants.

For Help

The Kitchener-Waterloo employment lawyers at Petker Campbell Postnikoff have many years of experience advising non-unionized employees and employers on a variety of workplace issues, including harassment and termination. Our team will walk you through the details of your dispute, advise you on your rights, responsibilities and obligations, and help you understand your options. If your dispute cannot be settled through negotiation, we can represent you through mediation and the court process.

We represent clients throughout southern Ontario, including the communities of Cambridge, Guelph, Elmira, Brantford, Fergus, Elora and the surrounding area. Call 519-886-1204 or contact us online for a consultation.