Northern Exposure

Broader workplace harassment claims: Is Canada becoming more litigious?

by Shane Todd

Can a Canadian employee sue an employer for harassment that is not related to a discrimination claim? The answer used to be “no.” But that’s changing.

In most jurisdictions across Canada, an employee could sue or file a human rights application for harassment related to unlawful discrimination. An employee could file a complaint with the appropriate government agency about workplace harassment that violates health and safety or harassment laws. An employee could even sue for constructive dismissal based on harassing conduct. But, until recently, an employee could not usually sue an employer for harassment that was unrelated to some other legal right or protection.

In Merrifield v The Attorney General (2017 ONSC 1333), the Ontario Superior Court of Justice said there is a new, freestanding basis to sue for workplace harassment. Employers should take notice.

What happened?

Merrifield was an officer of the Royal Canadian Mounted Police (RCMP). He said his supervisors harassed him after he sought to be nominated to run in an election as a candidate for the Progressive Conservative Party.

He said he suffered demeaning comments, unwarranted investigation, tarnishing of his reputation, and a disciplinary transfer. Merrifield raised his concerns with superiors. The RCMP never responded. Merrifield then sued his employer for harassment, among other things.

What did the court decide?

The court had to decide if Merrifield could sue for harassment. This was not the first time the issue had been raised. In 2006, a British Columbia court decided that it could be done. At least two Ontario cases since then had applied that B.C. decision.

On that basis, the court decided that Merrifield could sue for harassment. It said there were four questions to be answered affirmatively to prove harassment:

  • Was the conduct of the defendants toward the employee outrageous?
  • Did the defendants intend to cause emotional stress, or did they have a reckless disregard for causing the employee to suffer emotional stress?
  • Did the employee in fact suffer from severe or extreme emotional distress?
  • Was the outrageous conduct of the defendants the actual cause of the emotional distress?

The court found that it should answer “yes” to all four questions in this case. It therefore awarded Merrifield $100,000 in damages for harassment and intentional infliction of mental suffering. The RCMP has appealed the decision.

What does this mean for employers?

Unless and until the appeal is allowed, employers can be subject to a civil lawsuit from employees for harassment. If the four-point test is proven, an employer will be liable to pay damages. This is in addition to any complaints that may be brought under the human rights laws for harassment related to unlawful discrimination. It is also in addition to complaints made under health and safety or general harassment laws in effect in various jurisdictions across Canada.

The case also highlights the importance of proactively preventing harassment and effectively discharging your duty to respond to complaints of harassment. If the RCMP had investigated and, if necessary, taken appropriate corrective action when Merrifield first complained, this lawsuit may never have been started.

Employers should review and, if necessary, update training, policies, and procedures for preventing harassment, investigating complaints, and reporting the results of their investigations.

The assistance of summer student Geoff Tadema in preparing this update is gratefully acknowledged.