The Court of Appeal released this week a decision[1] setting aside a trial decision[2] which had, for the first time, recognized a new tort claim of harassment.

Harassment Claim

There are subtle differences between the traditional claim of “the intentional infliction of mental distress” and what was the newly proposed claim of “harassment”.

The test, as was set by the trial court for this claim of harassment was as follows:

  1. The conduct in question is “outrageous” which was defined to be “grossly offensive”;
  2. The conduct was intentional or done with reckless disregard;
  3. The employee suffered extreme or serious emotional distress;
  4. The questioned conduct was the proximate or actual cause of the emotional angst.

Was this New?

There has, always, however, been a similar tort known as “the intentional infliction of mental distress”, which requires an almost, but not quite, identical test.

The significant difference is that the conduct to support this claim must be “outrageous and flagrant”, which would appear to be a battle in semantics. If the conduct is “outrageous” and intentional or done with reckless disregard, one would expect it to be also “outrageous and flagrant”. This claim also requires a diagnosed medical illness as opposed to “extreme or serious emotional distress”, again a fine line without an evident substantive distinction.

The Court of Appeal noted that the new tort would require intentional or “reckless disregard” which would allow a further distinction to allow a possible claim in negligence.

It also concluded that there was no compelling reason presented in this case to create such a new legal remedy.

Results of This Case

Merrifield had been successful at trial on the intentional infliction of mental distress claim. The harassment claim, ironically, was academic as the two awards overlapped one another. The total award on these claims was $100,000. A further award was made of $41,000 as out of pocket expenses.

The intentional infliction of mental distress award was reversed based on the appellate court’s review of the facts of this case.

Notably the trial had taken some 40 days. The plaintiff had recovered $825,000 in trial costs, an award which was reversed on appeal to be in favour of the RCMP.[3] Appeal costs also were awarded to the employer.

High Risks Poker

Just as indicated in the most recent post on the issue of legal costs, this case illustrates the dramatic risks facing an individual suing a well-funded institution. Should a person risk such a magnitude of crushing costs for the possibility of winning a difficult case awarding $141,000? Likely not.

Employers’ View

The appellate court did set out the test for the possibility of expanding tort law. The employer may take note of the shaping of new remedies and be mindful of the dynamic nature of the law on this subject. Like all cases involving harsh allegations of wrongdoing as in this case, companies must be mindful of the possible exposure of serious damage awards. A diligent and timely investigation will assist its defence as will fair and well-intended corporate policies of fairness.

Employees’ View

Difficult factual cases as in this instance present serious concern to a self-funding plaintiff. Costs awards of this nature may bankrupt many people. Individuals must be cautious in choosing what cases to litigate and how to do so.

Get Advice and Know Your Rights

Litigation is a high wire business. For advice on all employment law matters, contact the offices of Toronto employment lawyers Grosman Gale Fletcher Hopkins. We regularly advise workplace parties on a wide range of legal workplace issues. Contact us online or by phone at 416 364 9599 to schedule a consultation.


[1] Merrifield v Canada OCA

[2] Merrifield v Canada trial decision

[3] The quantum of these costs in favour of the employer remains to be determined.