How is a tort born?   In September 2018 the Ontario Court of Appeal was required to consider that very question when it was called upon to decide, in the case Merrifield v. AG of Canada (2019) ONCA 205, whether it would be appropriate to recognize or create a new tort of harassment.   The Court declined to recognize this new tort, noting that although an appellate court has the power to create torts, this is a power than must be used extremely cautiously and sparingly, particularly when there are other remedies which are potentially available to an aggrieved Plaintiff.

In this case, the Plaintiff was a constable with the RCMP who was detailed to the Threat Assessment Group, a unit responsible for providing security for federal politicians, and monitoring criminal and terrorist groups.   In 2005, the Plaintiff sought nomination to be the Conservative Party’s candidate in the Barrie riding without first advising his superiors.   Upon learning this, the RCMP removed him from an investigation into a death threat against Belinda Stronach, who had recently crossed the House from the Conservative party caucus to the Liberal party caucus, and ultimately reassigned him from the Threat Assessment Group, on the basis that his presence there was a conflict of interest in light of his apparent political aspirations.    Later that year, the Plaintiff appeared on a radio show as a “terrorism expert” in violation of RCMP policies regarding media appearances.   In early 2006, an internal investigation was launched against the Plaintiff regarding apparent improprieties with respect to use of his corporate credit card.   The Plaintiff ultimately commenced suit against RCMP for harassment and intentional infliction of mental distress, citing a diagnosis of depression and PTSD as a result of his treatment by his employer.

At trial, the judge concluded that there was a “free standing” tort of harassment, and that the Plaintiff was entitled to damages both for harassment and intentional infliction of mental distress.   The Plaintiff’s employer appealed.  The panel of the Ontario Court of Appeal which heard this appeal, composed of Justices Juriansz, Brown and Huscroft upheld the Defendant’s appeal, concluding that there was basis at law for recognizing a new tort of harassment, and that the Plaintiff had not made out the elements of intentional infliction of mental distress.   The Court started its analysis by noting that this was the first occasion where a Canadian appellate court had been asked to determine where a tort of harassment exists.   Accordingly, the Court gave consideration to the circumstances under which a new tort should be recognized or established, noting that by necessity, the common law tends to change slowly and incrementally.

Turning to the existence of a tort of harassment, the Court of Appeal then noted that none of the authorities presented to the trial judge in support of the recognition of this tort confirmed the tort’s existence, or specified the elements that would need to be proven in order to establish liability under this tort.   At best, the cases relied upon by the trial judge to recognize the tort of harassment either assumed the existence of a tort of harassment, or stated that such a tort “might exist” but was not made out in the case at hand.

Having concluded that there was no current case authority in support of the existence of a tort of harassment, the Court went on to consider whether it should nonetheless recognize its existence, or create this tort.   In this regard, the Court noted that it could create a new tort if in its discretion it would be appropriate to do so, but at the same time, it would be inappropriate, in light of the evolutionary nature of the common law, to conjure a new tort out of thin air in the absence of any authority in support of its existence in the absence of a compelling reason to do so.   The court concluded that this case did not present any compelling reason to create a tort of harassment, given that there were other remedies available to the Plaintiff.  One such remedy is the intentional infliction of mental distress.

The Court noted that the test for intentional infliction of mental distress was for the Plaintiff to establish conduct that is:

1. Flagrant and outrageous;
2. Calculated to produce harm, and;
3. Resulting in a visible and provable illness.

It is instructive at this point to look at the test articulated by the trial judge in Merrifield in support of the test for the proposed tort of harassment, which was as follows:

1. Was the Defendant’s conduct outrageous?
2. Did the Defendant intend to cause emotional distress, or have a reckless disregard for causing emotional distress?
3. Did the Plaintiff suffer severe or extreme emotional distress?
4. Was the Defendants’ conduct the proximate cause of the emotional distress?

As one can see, the test articulated for the proposed tort of harassment is quite similar to the test for the established cause of intentional infliction of mental distress.   The most significant difference is that for intentional infliction of mental distress, the Plaintiff’s conduct has to be “calculated to produce harm”.   Prior jurisprudence has stated that this is a subjective test and something more than foreseeability or reckless disregard must be proven.   However, in the proposed tort of harassment, reckless disregard will suffice to satisfy the element of intent, which suggests an objective test whereby a defendant “ought to have known” the outcome of their conduct.    In other words, the tort of intentional infliction of mental distress appears to be an intentional tort, whereas the tort of harassment is negligence-based.   This suggests that if the tort of harassment could be made out, it would have a “lower bar” than intentional infliction of mental distress as one would not have to prove subjective intent to create mental distress on the part of the Defendant.

This is illustrated by a subsequent decision from the Ontario Court of Appeal.   Colistro v. Thunder Bay and Tbaytel (2019) ONCA 197 was heard four months after Merrifield by a different panel of the Court.   In this case, the Plaintiff was an executive assistant employed with a private corporation named Tbaytel which had taken over the management of the City of Thunder Bay’s telecommunications services.   Prior to being employed with Tbaytel, the Plaintiff had been employed with the City of Thunder Bay in the City’s telephone department, at which time her supervisor was one Steve Benoit.   Mr. Benoit had been terminated by the City in 1996 following his sexual harassment of a number of employees, including the Plaintiff.

On January 29, 2007, Tbaytel, apparently unaware of the circumstances of Mr. Benoit’s termination eleven years earlier, announced that it would be hiring Mr. Benoit as Vice-President of Business and Consumer Markets.   Upon learning this, the Plaintiff left the workplace, feeling unwell, and later that day met with Tbaytel’s VP of Human Resources and explained that Mr. Benoit had previously sexually harassed her, and others, in the workplace.   She did not ever return to work and was subsequently diagnosed with PTSD and depression.

The terms of Mr. Benoit’s employment agreement included a probationary clause which would, according to the Court of Appeal, permit Tbaytel to not proceed with Mr. Benoit’s hiring without adverse consequences to it.  Nonetheless, Tbaytel proceeded to hire Mr. Benoit and advised the Plaintiff that “appropriate behavior” would be discussed with him.  In an attempt to accommodate the Plaintiff, Tbaytel offered to transfer her to another comparable position where she would not have to regularly interact with Mr. Benoit.   The Plaintiff declined, and ultimately commenced suit against both the City and Tbaytel for wrongful dismissal and intentional infliction of mental suffering.

At trial, the Plaintiff was found to have been constructively dismissed and was found to be entitled to damages equivalent to 12 months’ notice, from which her LTD disability benefits were deducted, for a net recovery of just $14,082.   The Plaintiff was also found entitled to $100,000 based upon the egregious manner in which she had been treated, pursuant to the Honda Canada case.

The Plaintiff’s claim for intentional infliction of mental distress, however, was dismissed.  Unfortunately, however, the Defendants “beat” their Rule 49 offer to settle and on that basis were awarded costs in the aggregate of $200,000.   The Plaintiff, perhaps not surprisingly, appealed.

Hoy ACJO, writing the decision for the Court of Appeal, started her decision by considering the test to be met for intentional infliction of mental distress.  Like the Court in Merrifield, Hoy AJCO noted that the test was threefold and contained a subjective element:  a Plaintiff must establish that the conduct in question was “flagrant and outrageous”, was “calculated to produce a certain result”, and caused a visible and provable illness.   With respect to the second element of the test Hoy AJCO noted that something more than foreseeability or the establishment of reckless disregard was necessary to meet this part of the test.

In Colistro, the trial judge had concluded that the hiring of an individual who was fired from a predecessor for sexual harassment of an existing employee constituted flagrant and outrageous conduct and was satisfied that this conduct was the result of the Plaintiff’s subsequent psychiatric diagnosis.   The trial judge concluded, however, that although the Defendants’ conduct was reprehensible, there was insufficient evidence that they knew that the Plaintiff’s diagnosis of depression and PTSD was “substantially certain” to follow as a result of Mr. Benoit’s re-hiring.

The basis for the Plaintiff’s appeal was that the trial judge made an error of law by finding that it was necessary that the Defendants knew the exact type of harm that the Plaintiff suffered was substantially certain to follow, right down to the Plaintiff’s specific diagnosis.   Hoy ACJO agreed with Plaintiff’s counsel in this regard, stating that all that was necessary was that the Defendants knew that their conduct was substantially certain to cause the Plaintiff “serious psychological injury”.  As the Plaintiff had immediately left the workplace claiming to be unwell upon learning of the Benoit being rehired, Hoy ACJO found that in this case, the Defendants did indeed know that their conduct was substantially certain to cause the Plaintiff serious psychological injury.   However, she went on to draw a distinction between knowing that a particular act is substantially certain to result in a particular illness or injury (reckless disregard for a certain result), and actively intending this result (subjective intent to create mental distress).   She concluded that in this case, although the Defendants might have known the effect on the Plaintiff of rehiring Benoit, there was no evidence that they intended to inflict this result on her by rehiring him, and that the fact that the Defendants made an offer, albeit an unsatisfactory one, to accommodate the Plaintiff by moving her to another department, tended to suggest an absence of active intent.   As such, she concluded that the second element of the tort of intentional infliction of mental distress was not made out by the Plaintiff and dismissed the Plaintiff’s appeal.

The foregoing illustrates that although the tort of intentional infliction of mental distress may give Plaintiffs an existing remedy in situations where the tort of harassment might otherwise apply, this is a much harder tort to prove, due to the necessary of proving a subjective intent on the part of a Defendant to cause harm to the Plaintiff.   Indeed, the Court in Merrifield described the elements of the tort of harassment as “less onerous” than intentional infliction of mental distress, insofar as intentional infliction of mental distress is an intentional tort, whereas harassment would operate as a negligence-based tort.   Nonetheless, the Court of Appeal concluded that although intentional infliction of mental distress was “more onerous” to prove, there was no rationale for it to recognize or create a new tort of harassment.

The Court in Merrifield then went on to consider whether the Plaintiff was entitled to damages for the intentional infliction of mental distress, having regard for the threefold test articulated above.   The Court found that there was no basis for concluding that the RCMP’s conduct was “flagrant and outrageous” given that the Plaintiff’s supervisor had power under s.40(1) RCMP Act to order an investigation if he had concerns the Plaintiff had contravened RCMP policy.

Despite this finding meaning that the Plaintiff had not met the test for intentional infliction of mental distress, the Court went on to consider the second and third branches of the test and concluded (not unlike Hoy AJCO three months later in Colisto) that there was no evidence that the RCMP intended that its treatment of the Plaintiff cause him mental suffering, and that there was insufficient evidence of a causal link between the RCMP’s investigation and the Plaintiff’s subsequent psychological diagnosis.

In the case Jones v. Tsige 2012 ONCA 32 the Court of Appeal did recognize the existence of a new tort:  the tort of intrusion upon seclusion.   In this case, Sharpe J.A., writing for the Court, noted that this case arose from breach of privacy brought about by advances in technology, what was felt to be a growing concern in the digital age.   He felt that this societal change provided the impetus for reform as it was a concern that was not addressed by the existing law of tort.   In coming to this conclusion, Sharpe J.A. stated “The law of this province would be sadly deficient if we were to send [the plaintiff] away without a legal remedy”.   This statement appears to figure prominently in the Ontario Court of Appeal’s reluctance to recognize a tort of harassment, insofar as the Court felt that the Plaintiff’s claim could potentially fit within the four corners of the tort of intentional infliction of mental distress.  However, it is quite clear that the subjective element of the second part of the test for this tort – that is, the need to establish subjective intent on the part of the Defendant – makes it impossible to successfully make out this tort in all but the rarest of cases.   It is submitted by the author that creating a new tort simply to cover a “gap” in the law, such as the trial judge did in Merrifield is not in keeping with the measured approach that the judiciary should take allowing the law to evolve.   Instead, the law should change as society changes to deal with new situations that consequently arise.