Common Law as a Dynamic Process

Written on behalf of Peter McSherry
Poker hand symbolizing the high stakes of suing
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Judge made law, known as “common law”, is a continuous process of development. It is far from static. Most decisions of courts on employment law matters are based on common law precedent. Generally speaking the higher the level of court, the more authoritative are its decisions which then are to be followed by lower courts.

Trial court decisions are also occasionally the springboard of development of new law. One such case was reviewed in a prior post when the judge recognized a new civil remedy or “tort” claim of harassment.[1]  This decision and its subsequent recent reversal by the Ontario Court of Appeal is a good example of the to and fro of common law development. This issue is not final as the plaintiff expects to seek approval or “leave” from the Supreme Court of Canada to have the issue finally determined.

“New” Harassment Claim

Prior to this decision there has always been a remedy known as “the intentional infliction of mental distress”. The differences between this claim and the newly proposed means of relief were reviewed in the prior post.

The Court of Appeal released last week its decision[2] setting aside the prior decision and the newly recognized tort claim of harassment.

As noted, it remains to be seen if the Supreme Court of Canada will take up this decision for review.

Results of This Case

In the meantime, the plaintiff has lost his case. The trial case took some 40 days, which is an unduly long time for a trial. The plaintiff had initially been awarded a judgment of $141,000 which is now zero. Even more significantly, the trial judge awarded costs of an extraordinary sum of $825,000. These trial costs will now be reversed, a decision which could easily bankrupt most individuals.

Be Careful When Suing

Litigation can be high stakes poker. Taking on a difficult case must be a decision made with extreme caution. Consideration should also be given to other means of relief apart from civil courts where there are no costs obligations. The human right tribunal is one such possible forum to review.

Get Advice and Know Your Rights

Get advice. Know your rights. Contact the offices of Guelph employment lawyer Peter McSherry. We can guide you through the issues, help you understand your rights, and defend your position. Contact us online or by phone at 519-821-5465 to schedule a consultation.


[1] Merrifield v Canada trial decision

[2] Merrifield v Canada OCA