UPDATE: On September 19, 2019, the application for leave to appeal from the judgment of the Court of Appeal for Ontario in Merrifield v. Canada (Attorney General), 2019 ONCA 205 was dismissed with costs by the Supreme Court of Canada​. 

In early 2017, in a case about strained relations between a Royal Canadian Mounted Police (the “RCMP”) member and several of his supervisors, the Ontario Superior Court of Justice (the “ONSC”) created a new “tort of harassment”, establishing it as an independent tort upon which a civil cause of action could be based.¹ Additionally, the ONSC awarded $140,000 in damages, finding that this tort, along with the tort of intentional infliction of mental suffering, had been established.

On March 15, 2019, however, the Ontario Court of Appeal (the “ONCA”) abolished the tort of harassment.² In reviewing the authority the ONSC relied on in support, the ONCA stated:

…these cases assume rather than establish the existence of the tort. They are not authority for recognizing the tort of harassment in Ontario …current Canadian legal authority does not support the recognition of the tort of harassment.

Given that such a tort did not previously exist, the ONCA held it was necessary to seek input on whether it ought to exist, and that this was an analysis the ONSC failed to undertake. 

The ONCA compared the tort of harassment to the tort of intrusion upon seclusion, a privacy tort the ONCA established in 2012,³ noting that the latter was “best understood as a culmination of a number of related legal developments”, which already existed in other jurisdictions and provided a legal remedy to fill a gap in the law. In contrast, the ONCA found that there are a variety of adequate existing legal remedies available to compensate for harassment, such as the tort of intentional infliction of mental suffering, and there was no compelling reason to recognize the tort of harassment.

Interestingly, the ONCA also overturned the ONSC’s finding that the elements of the tort of intentional infliction of mental suffering were made out, finding that the RCMP’s conduct was not “flagrant and outrageous”, as required by the first part of the test. As a result, the appeal was allowed and the damages award vacated in its entirety.

While this is a welcome decision for employers, it remains critical for employers to continue to take all reasonable steps to prevent harassment (including sexual harassment) in the workplace, including but not limited to providing training, having appropriate workplace policies and investigating any incident or complaint of harassment, all of which may be required by applicable occupational health and safety legislation. In addition, harassment may also constitute a breach of applicable human rights legislation when it is linked to a prohibited ground of discrimination.  Lastly, these circumstances, especially if it is linked to a reprisal, may provide grounds to support an award of other damages such as punitive or moral damages.