The tort of harassment was explored in the recent Ontario Court of Appeal decision in Merrifield v. Canada (Attorney General). The appeal relates to claims of harassment and bullying by the RCMP. At trial, the Judge recognized the tort of harassment and found that the decisions made with regard to Merrifield were found to be harassment. Merrifield was awarded damages, special damages and costs.
However, the Court of Appeal stated that in deciding the appeal, it first had to determine whether the Tort of Harassment exists. The Court of Appeal commented that common law changes are “evolutionary in nature” and slow. The Court of Appeal concluded that the legal authorities do not support the recognition of a tort of harassment, nor its elements. Instead, it was found that there were legal remedies “to redress conduct that is alleged to constitute harassment” including the Intentional Infliction of Mental Suffering (IIMS), which was found to address damages for mental suffering in the employment context. The Court of Appeal held that the test for IIMS is met where the plaintiff establishes that the conduct is: (1) flagrant and outrageous, (2) calculated to produce harm, and which (3) results in a visible and provable illness.
When the facts were assessed, the Court of Appeal concluded that the tort of IIMS had not been made out. The Court of Appeal expressly found that that the trial judge erred in finding the tort of harassment existed and further stated that it was not persuaded that the tort of harassment ought to be recognized in Ontario. Accordingly, the appeal was allowed and costs were awarded.