The common law in Ontario has proven relatively adept at developing new torts, in particular in the area of privacy law, to change and adapt to relatively stagnant or unsatisfactory statutory developments.
Although the tort of intimidation has long been recognized as giving rise to a cause of action, as affirmed in cases such as Tran v. University of Western Ontario, the status of the tort of harassment has been much more divided.
The Supreme Court of Canada affirmed in the 1981 decision of Seneca College of Applied Arts and Technology v. Bhadauria that human rights legislation are the more appropriate venue for pursuing claims of harassment related to those grounds. Outside of developments in post-secondary education law since, this rationale does not necessarily extend to claims of bullying or harassment where indicia of human rights are not present, or where it falls outside of the scope of the Human Rights Code. In an era where society is increasingly struggling with the rise of cyberbullying and harassment online, some have looked again to this tort as a potential remedy.
One of the earliest cases to lay out the elements of the tort of harassment is in the 2006 B.C. case of Mainland Sawmills Ltd. et al v. IWA – Canada et al, where the plaintiffs set out to base the tort on the basis of the American tort of intentional infliction of emotional distress, which would contain the following elements:
1. outrageous conduct by the defendant;
2. the defendant’s intention of causing or reckless disregard of causing emotional distress;
3. the plaintiff’s suffering of severe or extreme emotional distress; and,
4. the actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.
The court in this case did declined to determine whether the tort existed, and instead continued to assess whether the plaintiff’s claim was made out, which the decided in the negative. They did however distinguish this American-derived tort from the Canadian tort of intentional infliction of mental suffering (also known as IIMS, or as intentional infliction of nervous shock) on the basis that the latter requires some proof of a visible and proveable illness, whereas the former could be demonstrated by proof of severe or extreme emotional distress.
Since this case, there have been divided opinions across Canada as to whether this tort exists, what its constituent elements should be, or opinions that refuse to distinguish it from the existing tort of intentional infliction of mental suffering.
This week, the Ontario Court of Appeal released its decision in Merrifield v The Attorney General, reversing the 2017 decision of Justice Mary E. Vallee of the Superior Court of Justice that had reviewed some of the relevant case law and had concluded that the tort of harassment did exist.
The Court of Appeal concluded that the trial judge had erred by recognizing the tort of harassment, and in applying the test for the intentional infliction of mental suffering. This is the first case of a Canadian appellate court to determine if this tort exists, and it therefore has important implications for the future.
The claim emerged from allegations of harassment and bullying by managers within the Royal Canadian Mounted Police (RCMP) towards a junior Constable assigned to the Threat Assessment Group (TAG), who was later promoted. Part of the TAG role included providing protective services to politicians, carrying out threat assessments, and monitoring criminal, extremist, and terrorist groups.
The conflict emerged in 2004 when the plaintiff decided to run for the Conservative Party in the federal election in Newmarket, York-Simcoe, Mississauga, Brampton, Richmond Hill or Barrie. He was in a potential conflict of interest given the investigation into a death threat against Belinda Stronach, Member of Parliament for Newmarket—Aurora, who had crossed the floor to leave the Conservatives for the Liberals.
As part of his political aspirations, the plaintiff had appeared in the media as a “terrorism consultant,” discussing various terrorist threats against Canada. However, he apparently did not comply with the applicable RCMP policies regarding these media appearances, and he was transferred to a different department.
The RCMP had never had a member run for political office, but it did have applicable rules and policies if a member wanted to do so. The clarity of these policies were in dispute, so in 2005 one of his managers sent a memo about his political campaign, potential conflicts, and media appearances.
The following year, a formal investigation was launched under Part IV of the Royal Canadian Mounted Police Act over the plaintiff’s use of a corporate credit card. This card was a special card that was “covertly backstopped” to prevent it from being linked to the RCMP, and therefore being able to identify the user as such. Although the investigation concluded that the plaintiff had contravened the RCMP Code of Conduct for failing to pay a small balance on this card, the plaintiff attributed this to various moves in his life and his belief that the appropriate paperwork had already been filled out.
The plaintiff’s interpretation of the conduct of the agency was that he was being punished and bullied for his political and media activities. There was an inaccurate media article that characterized him as being demoted, whereas he really was transferred laterally. This transfer was still interpreted by him as intended to be punitive in nature. All of these actions, in conjunction with threats he claimed by senior officers, had an affect on his health.
The Court of Appeal emphasized that although the common law does change, it does so slowly and incrementally. The creation of a new common law duty is justified where it flows from existing principles and underpin and inform existing common law rules, and responds to societal needs in a way that provides a basis to the reasonable expectation of parties without creating undue adverse effects.
The development of privacy torts was therefore described and interpreted as emerging from a growing acceptance of privacy claims, the culmination of a number of related legal developments, and specific facts that cried for a remedy.
In contrast, the tort of harassment was much more controversial, especially since the foundation case in Mainland Sawmills and those following it had already presumed the tort to exist without any analysis. Instead, the Court of Appeal focused on whether the court should create the tort in this case,
 At the outset, it is important to recognize that this is not a case like Tsige, which, as we have said, is best understood as a culmination of a number of related legal developments. As we have explained, current Canadian legal authority does not support the recognition of a tort of harassment.
 We were not provided with any foreign judicial authority that would support the recognition of a new tort. Nor were we provided with any academic authority or compelling policy rationale for recognizing a new tort and its requisite elements.
 This is not a case whose facts cry out for the creation of a novel legal remedy, as in Tsige…
 That is not this case. In this case, there are legal remedies available to redress conduct that is alleged to constitute harassment. The tort of IIMS is one of these remedies…
The Court of Appeal analyzed the tort of intentional infliction of mental suffering, and concluded it also did not apply here. They also found several factual errors that they characterized as palpable and overriding that would preclude a conclusion that harassment occur, even if the tort of harassment did exist.
Central to these errors of fact was the characterization of the plaintiff’s political involvement. The Court of Appeal did not find that the involvement in nomination meetings where the plaintiff was seeking a candidacy were sufficiently “private” event to party members as to excuse him the RCMP regulations regarding political involvement. They also found that the actual conflict began in 2005, over the plaintiff’s continued political involvement without properly apprising his supervisors.
The basis of the plaintiff’s discipline, transfer and investigation, especially around the conflict of interest, was challenged by the Court of Appeal. The manager in question had consulted and followed the advice of internal RCMP resources over potential conflicts before making the transfer, which substantiated a bona fide belief that a potential conflict could exist.
Although this conclusion by the first appellate court in Canada to discuss the tort of harassment may leave some disappointed about another potential tool to fight cyberbullying and online harassment, it is not fatal to those possibilities in the future. The extensive focus by the Court of Appeal on the factual errors in this case illustrate that this was not the right facts that would compel a court to develop or recognize a new tort.
Framed appropriately, including the difficulties in developing statutory remedies for online harassment, and by drawing parallel developments in case law likely in the areas of privacy torts, another case on another day may in fact be able to convince an appellate court to recognize this new tort. The requirement for “outrageous conduct” in particular will need to be particularly compelling to justify this development.
Until that day though, no such tort of harassment will likely exist anywhere in Canada.