March 28, 2019 by Greg Meckbach
Despite a recent ruling that harassment is not a free-standing tort in Ontario, corporate clients and their brokers still need to view harassment accusations as a serious liability risk.
In Merrifield v. The Attorney General, released in 2017, Justice Mary Vallee of the Ontario Superior Court of Justice awarded RCMP officer Peter Merrifield more than $140,000 and found that Ontario has a free-standing tort of harassment.
That ruling was quashed by the Court of Appeal for Ontario, in a decision released March 15, 2019.
But harassment is still a liability risk because if an employee quits and convinces a court he or she was harassed, that employee could be awarded damages for constructive dismissal, Toronto employment lawyer Andrew Monkhouse said Thursday in an interview.
“The court of appeal does not say harassment is okay in the workplace.”
Brokers should advise employers to have policies on what is and is not acceptable behaviour in the workplace and what managers should do if someone complains. Employers should be prepared to bring in an outside expert to investigate complaints, Monkhouse suggested.
Merrifield sued the federal government, his employer. Also named were a superintendent and an inspector with the RCMP.
Merrifield had numerous disputes with his superiors, including whether he was supposed to be on leave without pay when he sought nomination by a political party to run as a candidate in an election. He was also investigated over the use of a credit card while working undercover as an air marshal.
In her 2017 ruling, Justice Vallee ruled that conduct on the part of some of Merrifield’s superiors was outrageous.
She also found they committed the tort of intentional infliction of mental suffering.
Justice Vallee erred both in ruling that the tort of harassment exists, and also in her finding that Merrifield’s was a victim of the tort of intentional infliction of mental suffering, the Court of Appeal for Ontario ruled.
But even with no free-standing tort of harassment, an employer can still have aggravated, moral or punitive damages awarded against it for its behaviour in condoning harassment or allowing harassment to take place, Monkhouse said.
“Employers should be cautious and insurers who are insuring employers should be cautious to make sure all of their policies and procedures are up to date,” said Monkhouse, who was not involved in Merrifield’s lawsuit.
Justice Vallee’s 179-page ruling recounts incidents over more than 10 years starting in 2004. For example, Merrifield ran unsuccessfully for nomination to be the Conservative Party candidate in the riding of Barrie in 2005. He did this on a Saturday when he was not working but did not go on leave without pay.
He later spoke out about the federal gun registry. The RCMP took the position that Merrifield was voicing political opinions and undertaking political activities contrary to the RCMP Regulations. Senior RCMP officers were also concerned about Merrifield investigating death threats against a Liberal politician, given Merrifield’s involvement with the Conservative party at the time.
This led to an acrimonious meeting in 2005 involving Merrifield, other RCMP officers and a superintendent. He was later transferred to a different unit.
The Court of Appeal for Ontario disagreed with Justice Vallee’s finding that many actions on the part of Merrifield’s superiors were outrageous.
The appeal court said noted plaintiffs already have existing remedies available to redress conduct that is alleged to constitute harassment – one of which is the tort of intentional infliction of mental suffering. This is one reason the court refused to recognize a free standing tort of harassment in Ontario.