Does the Tort of Harassment Exist in Ontario?
Updated: Jul 6, 2021
Do you want to know whether you can sue your manager or your colleagues who annoy you, get on your nerve, and keep pushing you to keep up with very tight deadlines? Keep on reading to find out.
What Is the Tort of Harassment?
The Tort of harassment is an American legal concept. Except for the US, no other common law court has recognized the common law tort of harassment. It's not uncommon for a Plaintiff to raise all sorts of claims including harassment in a wrongful dismissal suite. The Test for the Tort of Harassment is as follows:
1) Where the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration, and extreme in degree so as to go beyond all possible bounds of decency and tolerance; 2) With the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and 3) The plaintiff suffers such harm.
Key Superior Court Case where the Tort of Harassment Was Being Discussed
The Ontario Superior Court of Justice acknowledged harassment as a cause of action and a free-standing tort in Merrifield v. The Attorney General of Canada, 2017 ONSC 1333.
The Plaintiff in this case worked for the Royal Canadian Mounted Police.
He said that after attending a Progressive Conservative Party nomination gathering in Barrie in 2005 to challenge the incumbent as a means of protest, his superiors made unjustified and unfair judgements concerning him based on unfounded claims, and that the RCMP erroneously accused him of engaging in criminal conduct, among other things. All of which contributed to his deep despair.
The Plaintiff sought damages for harassment, inter alia, but did not argue that the Ontario Human Rights Code had been violated. His claim was that the defendants had committed the tort of harassment under common law.
Is Merrifield Still Good Law in Ontario?
The Tort of Harassment is short lived. In Merrifield v. Canada (Attorney General), 2019 ONCA 205, the Court of Appeal denied the tort of harassment. Employees CANNOT base a harassment claim on an employer's negligence, according to the Court of Appeal. The Honda v. Keays doctrine  2 SCR 362 holds that a violation of the Human Rights Code is neither a tort nor a "independently actionable harm."
In another word, the Tort of Harassment is No Longer a Thing in Ontario after the Court of Appeal decision in Merrifield v. Canada (Attorney General).
Harassment is serious. It not only affects your ability to work, but it might also have long term impacts on your mental health. An Employment Lawyer Consultation is highly recommended.