Law Times

March 25, 2019

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LAW TIMES COVERING ONTARIO'S LEGAL SCENE | MARCH 25, 2019 3 BY JULIUS MELNITZER For Law Times THE Ontario Court of Appeal has emphatically rejected "ha- rassment" as a freestanding tort, at least in employment cases — but it didn't close the door on the tort forever. In refusing to recognize the tort at this time, the court re- jected the argument made by the plaintiff 's lawyer in Merrifield v. Canada (Attorney General) that the new tort was necessary because of society's increased "recognition that harassment is wrongful conduct." "It was apparent that the court didn't want to have these kinds of claims brought into court at this time," says Laura Young of Laura Young Law Offices in Toronto, who repre- sented Peter Merrifield. "So, ha- rassed employees are now stuck with proving intentional inf lic- tion of mental suffering." Ultimately, the court found that there was no compelling policy rationale to recognize the tort of harassment. "While it is true that there is increased and long-overdue so- cietal recognition that workplace harassment is completely unac- ceptable conduct, the Court of Appeal simply did not see any legal gaps warranting the recog- nition of a new tort at this time," says Paul Boshyk, a Toronto partner in McMillan LLP's ad- vocacy and employment group. "In essence, the court concluded that the tort of harassment was a less onerous version of the al- ready well-established tort of intentional inf liction of mental suffering." Boshyk says human rights tribunals have, in recent years, shown an increased willingness to award significant damages to employees in workplace harass- ment cases. He cites O.P.T. v. Presteve Foods, the 2015 land- mark decision where the Hu- man Rights Tribunal of Ontario ordered an employer to pay re- cord-high damages of $150,000 for "injury to dignity, feelings and self-respect" after it found that the employer engaged in a persistent and ongoing pat- tern of sexual harassment in the workplace. To some extent, the decision should not be a surprise. In 2010, Juriansz, the senior judge in Merrifield, was a mem- ber of the unanimous bench that decided Piresferreira v. Ayotte. In that case, the bench declined to recognize a new tort of negli- gent inf liction of mental suffer- ing — essentially the equivalent of the harassment tort put for- ward in Merrifield. The court also noted the Su- preme Court of Canada's rul- ing in Wallace v. United Grain Growers, where Justice Frank Iacobucci (now retired), writing for the majority, intimated that the recognition of a new tort in the employment context, which is a contractual relationship, was better left to the Legislature. Here, Merrifield was indeed an RCMP employee member and a member of the force's threat assessment group, whose responsibilities included pro- tecting politicians. Following what he characterized as seven years of bullying and harass- ment from his superiors stem- ming from his alleged breach of RCMP regulations after he sought a Conservative Party nomination in Barrie, Ont., Merrifield left his job and in 2007 sued for harassment, in- ternational inf liction of mental suffering, loss of income and general damages. After a 40-day trial that end- ed in 2016, Justice Mary Vallee of the Superior Court of Justice recognized harassment as a free- standing tort. She awarded Mer- rifield $100,000 in general dam- ages, $41,000 in special damages and $825,000 in costs. But a unanimous Court of Appeal composed of justices Russell Juriansz, David Brown and Grant Huscroft ruled that Vallee had erred in recognizing the new tort. Doing so, the court concluded, was not a matter of judicial discretion that allowed judges to create new torts "any- time" they considered it appro- priate to do so. "This is not a case whose facts cry out for the creation of a novel legal remedy," the court wrote — while stating in virtu- ally the same breath that it did not "foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts." Merrifield wasn't a case that cried out for an award based on intentional inf liction of mental suffering either. In allowing the defendant's appeal and dismiss- ing the action, the appellate court concluded that the trial judge had made "palpable and overriding errors" in her find- ings of fact and incorrectly ap- plied the legal test for intentional inf liction of mental suffering. Young says seeking leave to appeal to the Supreme Court of Canada will be "the subject of discussion" with her client. LT Paul Boshyk said in a recent ruling that the court 'concluded that the tort of harassment was a less onerous version of the already well-established tort of intentional infliction of mental suffering.' NEWS Case centres on RCMP officer Court of Appeal rejects recognizing tort of harassment Untitled-3 1 2019-03-20 3:33 PM

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