ONCA: "No Compelling Reason" to Recognize Harassment as Free-Standing Claim in Ontario
The Court of Appeal for Ontario has declined to recognize "harassment" as a free-standing basis to sue in Ontario.
In a recent ruling, the Court of Appeal for Ontario has declined to recognize “harrassment” as a free-standing basis to sue in Ontario.
The court overturned a 2017 trial decision which awarded an RCMP officer $100,000 for mental distress suffered as a result of alleged harassment and bullying by his managers.
The trial judge had concluded that the “tort of harassment” exists in Ontario, but the Court of Appeal disagreed. In the court’s view, the case presented “no compelling reason” to extend the law.
TORTS / CAUSES OF ACTION
Most lawsuits seek monetary compensation for some alleged wrong (sometimes called a “tort”). But courts won’t award compensation merely in response to general complaints of unfairness or injustice. A plaintiff must satisfy what’s called a “cause of action.” This means that anyone who brings a lawsuit must convince the court that the facts of the case fall within a previously recognized legal category which attracts a right to compensation.
There are several recognized causes of action, and the categories are not closed. The development of these categories is described as “evolutionary in nature.” New categories may develop over time as cases are heard by judges.
DEVELOPMENT OF THE COMMON LAW
This legal tradition of judge-made laws rooted in past precedents is known as the “common law.” Many countries today share this common law legal tradition, and cases from other jurisdictions may be persuasive to a judge resolving a legal dispute.
The development of the common law “proceeds slowly and incrementally rather than quickly and dramatically,” and it is “based largely on the mechanism of extending an existing principle to new circumstances.” However, major law reforms are said to be better left for enactment by elected lawmakers who tend to be better positioned to appreciate the full economic implications and policy issues underlying a change in law.
Colour-Coded Legal System Map of the World reveals jurisdictions influenced by common law. (Attribution)
NO TORT OF HARASSMENT IN ONTARIO
The Court of Appeal felt that the trial judge in Merrifield was too quick to pronounce the existence of a common law tort of harassment in Ontario. Rather, the past cases relied on by the trial judge treated harassment as a “still-developing tort” which is still “not largely accepted.” The Court of Appeal also noted that they were presented with no foreign common law judicial authorities, academic authorities, or compelling policy rationales for recognizing a new tort.
In the court’s view, Ontario already has other “legal remedies available to redress conduct that is alleged to constitute harassment.”
But the brief review of existing legal remedies below suggests that there may be a gap in the legal protections afforded to employees in situations of harassment.
INTENTIONAL INFLICTION OF MENTAL SUFFERING
The common law tort of “intentional infliction of mental suffering” is available to claim compensation for mental suffering in the employment context. Intentional infliction of mental suffering is proven when a plaintiff establishes conduct that is,
flagrant and outrageous,
calculated to produce harm, and which
results in a visible and provable illness.
It is described as an “intentional tort.” This means a defendant must actually hold a subjective intent to cause the kind of harm that occurred. Employees cannot pursue claims for mere “negligent infliction of mental suffering in the employment context.”
Intentional torts are more difficult to prove than negligence-based torts because they require an inquiry into the actual mindset of the wrongdoer rather than merely into the objective standards of acceptable outward conduct established by society.
BAD FAITH CONDUCT IN THE MANNER OF DISMISSAL
Terminated employees can also sometimes obtain additional compensation if an employer engages in conduct during the course of dismissal which is unfair or in bad faith. Unduly insensitive conduct may fit this category, but this type of compensation can only be awarded in the context of a loss of employment.
An employee cannot launch a stand-alone claim for unduly insensitive conduct by an employer during the course of employment itself.
I have previously written a review of Ontario’s bad faith conduct awards in 2018.
HUMAN RIGHTS CODE
The Ontario Human Rights Code is an Act of the provincial legislature which provides some additional protections against harassment in the employment context. The Code provides every employee a “right to freedom from harassment in the workplace” but only with respect to specific protected grounds (race, disability, sexual orientation, etc. — see s.5(1) of the Code). It does not create a right to freedom from harassment generally.
OCCUPATIONAL HEALTH AND SAFETY
The Occupational Health and Safety Act requires employers to create workplace harassment policies for reporting and investigating workplace reports of harassment.
But the Ontario Labour Relations Board has held that “the Act places no obligation on employers to provide a harassment free workplace or to provide any specific outcome of a harassment complaint.” Rather, legal remedies for harm caused by workplace harassment “will have to be found elsewhere, such as at common law or, if…based upon a protected ground…at the Human Rights Tribunal of Ontario.”
A GAP IN THE LEGAL PROTECTIONS
Each of these potential remedies has its limits:
Intentional infliction of mental suffering protects against the worst cases of deliberate harassment but provides no protection against merely obtuse harassers.
Compensation for bad faith conduct in the manner of dismissal may provide protections against harassment in a loss of employment context but provides little protection from harassment during employment generally.
Human Rights legislation provides protection against harassment only for protected grounds but provides no protection against harassment generally.
Occupational Health and Safety legislation mandates workplace harassment policies and investigations but offers no actual remedy to employees who are harmed by workplace harassment or ineffective investigations.
Nevertheless, the Court of Appeal in Merrifield was not convinced there was a gap in the law. The court found “no compelling reason to recognize a new tort of harassment” on the facts of the Merrifield case.
Ben J. Hahn is an Ontario Employment and Civil Litigation Lawyer. Learn more about Ben here.