The Tort of Harassment

In Merrifield v. Canada (Attorney General), 2017 ONSC 1333, 2017 CarswellOnt 2927, the Ontario superior court adopted, or at the very least further solidified, the tort of harassment.[i] This case involved the harassment of an RCMP officer by his superiors due to his various political involvements by continued employment transfers and investigation into supposed credit card irregularities. The plaintiff as a result of this harassment took multiple sick leaves due to stress, depression and PTSD.

In this case the plaintiff pleaded on several grounds. Relevant for this discussion the plaintiff pleaded both the tort of harassment and intentional infliction of mental suffering. Firstly, we will explore the new tort as set out by the court as:

Test for Harassment

719      The test for harassment is set out in McHale and McIntomney above. In this case, there are four questions to be answered.

(a) Was the conduct of the defendants toward Mr. Merrifield outrageous?

(b) Did the defendants intend to cause emotional stress or did they have a reckless disregard for causing Mr. Merrifield to suffer from emotional stress?

(c) Did Mr. Merrifield suffer from severe or extreme emotional distress?

(d) Was the outrageous conduct of the defendants the actual and proximate cause of the emotional distress?

The court went through each element and tried to explain how each element functioned and can be assessed. Below is my consolidation of the element analysis:

  • Was the conduct of the defendants toward Mr. Merrifield outrageous?
    1. The element is on an objective standard.[ii]
    2. Outrageous is conduct that is grossly offensive.[iii]
    3. Factors that may constitute outrageous conduct by the defendant: lying about the plaintiff’s health or ability to work, lying to the plaintiff about medical reports provided by to the Defendant by the plaintiff’s physician, suggesting the plaintiff is malingering when medical documentation has proven he or she can’t work, suggesting the plaintiff’s conduct is harmful to clients without basis,  repeated communication with the plaintiff after direct communication has been requested to be ceased.[iv]

 

  • Did the defendants intend to cause emotional stress or did they have a reckless disregard for causing Mr. Merrifield to suffer from emotional stress?
    1. Intention to cause emotional distress can be proven by showing the plaintiff desired the consequence of the harassment.[v]
    2. Reckless disregard for emotional distress can be proven if defendant knew the type of harm that occurred was substantially certain to follow the harassment.[vi]

 

  • Did Mr. Merrifield suffer from severe or extreme emotional distress?
    1. Severe or extreme emotional distress does not have to be a visible or provable illness.[vii]
    2. Medical evidence at trial is not required to show severe or extreme emotional distress if the Defendant has acceded to the Plaintiff’s psychological diagnosis previously.[viii]
    3. Severe emotional distress is distress of a substantial or enduring quality no civilized person would be expected to endure.[ix]
    4. Factors that may meet the threshold: Stress, anxiety, high blood pressure, weight gain, major depression, PTSD, nightmares, trouble sleeping, cessation of hobbies or activities, causing inefficient work.[x]

 

  • Was the outrageous conduct of the defendants the actual and proximate cause of the emotional distress?
    1. Factual chronology of the harassment and medical evidence will aid in meeting this factor.

Notably, in the case at hand there was no medical evidence before the court. The justice held none was required as the torts of harassment or intentional infliction of harm do not require this evidence to find mental damages. However, in this instance the Defendant had previously accepted the psychological diagnosis of the Plaintiff. Therefore, for other fact scenarios, and if nothing else to help prove damages and causation, medical evidence will likely be needed to meet the elements for the tort of harassment.

Harassment vs. Intentional Infliction of Mental Suffering

The tort of harassment and the tort of intentional infliction of mental suffering are very similar in nature, however, the later is a harder to test to meet:

Tort of Harassment

Tort of Intentional Infliction of Mental Suffering

Test for Harassment

719      The test for harassment is set out in McHale and McIntomney above. In this case, there are four questions to be answered.

(a) Was the conduct of the defendants toward Mr. Merrifield outrageous?

(b) Did the defendants intend to cause emotional stress or did they have a reckless disregard for causing Mr. Merrifield to suffer from emotional stress?

(c) Did Mr. Merrifield suffer from severe or extreme emotional distress?

(d) Was the outrageous conduct of the defendants the actual and proximate cause of the emotional distress?

 

838      According to Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, 120 O.R. (3d) 481 (Ont. C.A.), the test for intentional infliction of mental suffering has three elements. The defendants’ conduct must have been

(a) flagrant and outrageous,

(b) calculated to harm the plaintiff and

(c) it must have caused the plaintiff to suffer a visible and provable illness.

The court noted that the tort of intentional infliction of mental suffering is different in that the conduct of the defendant must be “flagrant and outrageous” as opposed to just “outrageous”.[xi] Additionally, in regards to the tort of infliction of mental suffering the plaintiff must show that he or she suffered a visible and provable illness as opposed to the tort of harassment that only requires “severe emotional distress” which can be proven on an objective basis.[xii]

In the future most, if not all, counsel in pleading harassment will plead both torts. The hope being of course that if intentional infliction of mental suffering is not met the tort of harassment will be. It will be interesting to follow both torts in the future to see if they stay distinct or slowly merge together.

[i] Merrifield v. Canada (Attorney General), 2017 ONSC 1333, 2017 CarswellOnt 2927, at para 718.
[ii] Merrifield v. Canada (Attorney General), 2017 ONSC 1333, 2017 CarswellOnt 2927, at para 723.
[iii] Merrifield v. Canada (Attorney General), 2017 ONSC 1333, 2017 CarswellOnt 2927, at para 723.
[iv] Merrifield v. Canada (Attorney General), 2017 ONSC 1333, 2017 CarswellOnt 2927, at para 725.
[v] Merrifield v. Canada (Attorney General), 2017 ONSC 1333, 2017 CarswellOnt 2927, at para 728.
[vi] Merrifield v. Canada (Attorney General), 2017 ONSC 1333, 2017 CarswellOnt 2927, at para 731.
[vii] Merrifield v. Canada (Attorney General), 2017 ONSC 1333, 2017 CarswellOnt 2927, at para 732.
[viii] Merrifield v. Canada (Attorney General), 2017 ONSC 1333, 2017 CarswellOnt 2927, at para 844-845.
[ix] Merrifield v. Canada (Attorney General), 2017 ONSC 1333, 2017 CarswellOnt 2927, at para 732.
[x] Merrifield v. Canada (Attorney General), 2017 ONSC 1333, 2017 CarswellOnt 2927, at para 733-735.
[xi] Merrifield v. Canada (Attorney General), 2017 ONSC 1333, 2017 CarswellOnt 2927, at para 839.
[xii] Merrifield v. Canada (Attorney General), 2017 ONSC 1333, 2017 CarswellOnt 2927, at para 839,732.

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