Court confirms employees can sue for harassment

The Ontario Superior Court of Justice recently held that workplace harassment is a cause of action upon which an employee can commence a civil claim against an employer.

In Merrifield v. The Attorney General, the employee, Peter Merrifield, had been a successful member of the RCMP since 1998 and had been involved in national security investigations and obtaining convictions in high profile prosecutions. However, he alleged that he began experiencing adverse treatment from his superiors after he sought nomination as a federal Progressive Conservative candidate in 2005.

The trial judge ultimately found that Merrifield had been harassed and bullied by his superiors, and that they had damaged his reputation and impaired his career advancement. Merrifield eventually transferred out of his position despite positive performance reviews. The court also determined that the employer’s egregious conduct caused the plaintiff severe emotional distress including depression. Merrifield sought damages for the tort of harassment in addition to other claims.

The court was tasked with determining whether a tort of harassment existed upon which an employee in Ontario could recover damages. In a 900-paragraph decision, the court held that harassment can be a cause of action in Ontario and outlined the following test for the tort of harassment:

• Was the conduct of the defendants toward the plaintiff outrageous?
• Did the defendants intend to cause emotional stress or did they have a reckless disregard for causing the plaintiff to suffer from emotional stress?
• Did the plaintiff suffer from severe or extreme emotional distress?
• Was the outrageous conduct of the defendants the actual and proximate cause of the emotional distress?

Merrifield was awarded $100,000 in general damages against the RCMP.

Takeaways for employers

The expansion of liability for employers in relation to workplace harassment aligns with amendments in 2016 to the Ontario Occupational Health and Safety Act. The amendments require employers to have a harassment policy in place and, further, impose a positive obligation on employers to conduct an investigation of a workplace harassment complaint that is "appropriate in the circumstances"(among other changes). The Merrifield decision and the amendments to the Occupational Health and Safety Act reflect greater scrutiny and disapproval by the courts and government bodies of incidents of workplace harassment.

The Merrifield decision is currently being appealed. Regardless, the Merrifield decision reaffirms that all employers must take workplace harassment seriously and respond appropriately. Employers must have a robust workplace harassment program, ensure employees receive adequate training and respond to all allegations of workplace harassment with an appropriate investigation based on the circumstances. The proper application of a workplace harassment program will greatly assist in preventing situations from reaching the threshold necessary to constitute the tort of harassment.

For more information see:

• Merrifield v. Canada (Attorney General), 2017 CarswellOnt 2927 (Ont. S.C.J.).

Evan Campbell is an associate with Miller Thomson LLP in Guelph, Ont., representing employers regarding all aspects of labour relations and employment law. He can be reached at (519) 780-4634 or [email protected].