Ontario Superior Court Recognizes New Tort of Harassment

Written on behalf of Peter McSherry
age discrimination
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New Tort of Harassment

The recent decision of the Ontario Superior Court in Merrifield v A-G Canada has received much attention in the employment bar as it approved for the first time a tort claim for “harassment”. For reasons which follow, the decision will likely have modest impact on the employment law remedies. Further, given the proposed amendments to the Workers Compensation Act in Ontario, for 70% of Ontario’s work force, it will likely be of no consequence whatsoever.

What Has to be Proven

The test set by the court in this recent decision for conduct which may allow an employee to sue his or her past employer, or even current employer, for this claim of harassment is as follows:

  1. The conduct in question is “outrageous” which was defined to be “grossly offensive”;
  2. The conduct was intentional or done with reckless disregard;
  3. The employee suffered extreme or serious emotional distress;
  4. The questioned conduct was the proximate or actual cause of the emotional angst.

Is this Really New?

There has, always, however, been a similar tort known as “the intentional infliction of mental distress”, which requires an almost, but not quite, identical test.

The significant difference is that the conduct to support this traditional action must be “outrageous and flagrant”, which would appear to be a battle in semantics. If the conduct is “outrageous” and intentional or done with reckless disregard, one would expect it to be also “outrageous and flagrant”. This claim also requires proof of a medical illness as opposed to “extreme or serious emotional distress”, again a fine line without an evident substantive distinction.

Indeed, in this recent case against the RCMP, the court found that the wrongdoing passed both tests of harassment and the intentional infliction of mental suffering to allow for a single overlapping recovery of $100,000 for the emotional distress suffered by the plaintiff, who, in essence, had been treated unfairly by the employer in its disciplinary process. A lost income claim was also allowed of approximately $40,000.

Workers Compensation & Emotional Distress

Before the courts become clogged with allegations of this nature, regard must be had to the pending changes in Ontario’s workers’ compensation law which the Liberal government has announced will be amended to provide a lesser threshold for benefits resulting from emotional distress.

Under the present law, a worker’s claim must show “an acute reaction to a sudden and unexpected traumatic event arising out of and in the course of employment.” This has been successfully challenged as contrary to the Charter of Rights and Freedoms and hence the amendment is designed to bring the statute into compliance, setting the threshold as “chronic or traumatic mental stress” and eliminating the need to show a “sudden and unexpected traumatic event”.

The revision, which is intended to become effective January 1, 2018, reads as follows:

13(4)     Subject to subsection (5), a worker is entitled to benefits under the insurance plan for chronic or traumatic mental stress arising out of and in the course of the worker’s employment.

13(5)     A worker is not entitled to benefits for mental stress caused by decisions or actions of the worker’s employer relating to the worker’s employment, including a decision to change the work to be performed or the working conditions, to discipline the worker or to terminate the employment.

This amendment will have repercussions, however, well beyond its immediate intention. For those workers covered by the statute, roughly 70% of Ontario’s work force, it will very likely bar any form of civil tort claim based on an abusive work environment, including any claim for aggravated damages and or punitive damages, which recently have been substantive.

It may even limit recovery of human rights damages under the Human Rights Code, as unimaginable as that may seem at first blush.

Master Laycock of the Court of Queen’s Bench in Alberta in the March 2013 decision of Ashraf v SNC Lavalin ATP Inc. considered a motion brought by the employer to dismiss the civil action brought by the plaintiff in which it was asserted that he had been bullied by his co-workers.

The plaintiff sued for damages for mental anguish. No constructive dismissal claim was alleged. He remained an employee and was in receipt of disability insurance benefits.

The employer motion was based on the proposition that the Workers’ Compensation Act (the Act) applied and hence no civil action was possible against the employer. The civil claim was based on intentional and wilful wrongdoing of the employer.

Statutory Wording Typical

The Court noted section 21 of the Act which denied the right to sue stated as follows:

(1) No action lies for the recovery of compensation under this Act and all claims for compensation shall be determined by the Board.

 (2) This Act and the regulations apply instead of all rights and causes of action, statutory or otherwise, to which a worker, the worker’s legal personal representatives or the worker’s dependents are or might become entitled against the employer of the worker by reason of any accident happening to the worker, and no action in respect of that accident lies against the employer. (emphasis added by the court)

In turn, the Act also defined “accident” in a manner, as noted by the Master, which is contrary to its common meaning, as the defined term included a “willful and intentional act” and “disablement”:

Alberta’s statute allowed for workers’ compensation claims based on emotional distress. The court also noted that whether the action was brought in contract or tort was of no moment, as the legislation forbade any civil claim, no matter how pleaded.

The motion succeeded and the claim was dismissed. This decision was upheld by Mr. Justice Mahoney and again by the Alberta Court of Appeal. The employee was allowed, however, to assert that the abusive conduct was constructive dismissal.

Most statutes governing such benefits, including that of Ontario, use a similar definition of “accident” to include willful and intentional conduct.

The consequences of this decision may be dramatic, particularly given the proposed amendments. Decisions such as the Ontario case of Prinzo v Baycrest, and indeed the moral or aggravated damage claim as set out in Honda v Keays, may be of historical value only in instances where the employee is covered by this legislation.

Human Rights Claims a Safe Haven ?

There remains a further argument that the workers’ compensation statutes may deprive the relevant human rights commission of jurisdiction to award a damage claim for such a violation, given appropriate coverage. This issue will be reviewed in a later posting. Stay tuned.

Take Advice Before You Act

This decision illustrates the complexity of the law on the subject of an abusive workplace environment. This case did not involve an allegation of abuse covered by the Ontario Human Rights Code which will add yet another layer of complexity.

Situations of this nature shout out for competent legal advice. Get advice before you act. Contact the offices of Guelph employment lawyer Peter McSherry. We can help you determine whether you may have a claim due to a poisoned work environment or a constructive dismissal claim. Contact us online or by phone at 519-821-5465 to schedule a consultation.