Ontario Superior Court Recognizes Independent Tort of Harassment in Sweeping Critique of the RCMP
- July 24, 2017
On February 28, 2017, the Ontario Superior Court released a lengthy, sweeping judgment, criticizing the RCMP and its officers for a prolonged campaign of harassment against Sergeant Peter Merrifield.
Over a period of seven years, the Court found that members of the RCMP had launched unsubstantiated disciplinary investigations against Sergeant Merrifield; had transferred Sergeant Merrifield away from his field of expertise and denied him assignments; accused him of “kiting” or stealing funds from his RCMP American Express card; critiqued Sergeant Merrifield for engaging in public appearances; made disparaging comments about Sergeant Merrifield to his human intelligence sources as well as other members of the RCMP; and ultimately did what they could to ensure Sergeant Merrifield’s illustrious career was stonewalled. This treatment stemmed from a feeling by some members that Sergeant Merrifield was “untrustworthy” after his involvement in political activities in 2004 and 2005.
Unique about this case is that the complaint of harassment was not made under the Ontario Human Rights Code. The Code restricts harassment complaints to situations of harassment on the basis of a protected ground, such as race, age, or sex. The harassment in Merrifield was not based on any protected category.
The Court found, based in part on jurisprudence out of British Columbia, that an independent tort of harassment did exist in Ontario. This tort has four elements:
- Was the conduct of the defendant(s) toward the plaintiff(s) outrageous?
- Did the defendant(s) intend to cause or have a reckless disregard for causing the plaintiff(s) to suffer from emotional distress?
- Did the plaintiff(s) suffer from severe or extreme emotional distress?
- Was the outrageous conduct of the defendant(s) the actual and proximate cause of the emotional distress? (Decision, at paragraph 719)
These elements are similar to those of the recognized tort of intentional infliction of mental suffering. This latter tort requires that conduct also be “flagrant”, be calculated to harm the plaintiff, and that it result in a visible and provable illness (Decision, at paragraph 838).
Ultimately, the Court found that Sergeant Merrifield had made out both torts (harassment and intentional infliction of mental suffering). Other claims for breach of Sergeant Merrifield’s Charter rights, breach of contract, abuse of/misfeasance in public office, and breach of fiduciary duty were not accepted by the Court.
Sergeant Merrifield was awarded $100,000 in general damages and $41,000 for loss of income (based on missed promotional opportunities).
The RCMP filed a Notice of Appeal with the Ontario Court of Appeal on March 30, 2017. A cross-appeal was filed on April 20, 2017.
This decision opens the door to harassment complainants who may not have been able to fit their allegations under a protected ground under the Ontario Human Rights Code. For an example of harassment findings based on Code protected grounds, read bakerlaw’s blog post on the Human Rights Tribunal of Ontario’s decision in Gricken v Andriano, 2017 HRTO 698, here (link).
You can read the full decision in Merrifield v The Attorney General, 2017 ONSC 1333, here (link).
Update: In 2019, the Ontario Court of Appeal (ONCA) overturned the Superior Court’s decision in Merrifield. The Court of Appeal ruled that there is currently no basis for the tort of harassment. However, this decision does not mean that employers are released from their duty to create a safe and harassment free workplace. Workplaces must continue to provide harassment free environments, and employees may still have recourse through the Ontario Human Rights Code if they experience harassment or poisoned workplace environments. You can read the Court of Appeal’s decision here (link).