We recently wrote about new requirements for employers to implement comprehensive policies, programs, and investigative procedures to address workplace harassment under the Occupational Health and Safety Act (“OHSA”) ‒ see our blog post here. Failing to comply with the OHSA can result in a substantial fine. Employees now also have a green light to bring a civil action in relation to workplace harassment as a result of a recent decision by the Ontario Superior Court of Justice. In Merrifield v. The Attorney General, 2017 ONSC 1333, the Court allowed an employee’s claim against his employer and two superiors for the “tort of harassment” and awarded significant damages against the defendants as a consequence.

Background

The plaintiff, a Royal Canadian Mounted Police member since 1998, brought a civil claim alleging that his superiors harassed him and bullied him. The thrust of the plaintiff’s claim was that his superiors made unjustified and unwarranted decisions about him due to the fact that he sought nomination as a federal Progressive Conservative candidate in 2005 (the Liberals formed the government at the time). The plaintiff alleged that he was investigated and punitively transferred without merit, his reputation was tarnished, he suffered substantial career setbacks and underwent severe emotional distress. Until the time of the alleged harassment, the plaintiff had been instrumental in investigating national security concerns, including obtaining convictions in key prosecutions. A high-profile trial took place over the course of many months, including testimony by RCMP Commissioner Bob Paulson.

Test for Harassment

Not surprisingly, the defendants took the position that there is no free-standing tort of harassment and relied on the finding to this effect in a 2012 Ontario Superior Court decision dealing with workplace sexual harassment (Desjardins v. Society of Obstetricians and Gynecologists of Canada et al.). In her lengthy decision, the trial judge accepted essentially all of the plaintiff’s evidence and his argument that harassment can be a cause of action in Ontario. The trial judge applied the following test for harassment:

(a) Was the conduct of the defendants toward the plaintiff outrageous?

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

(c) Did the plaintiff suffer from severe or extreme emotional distress?

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

This test had developed in British Columbia and Ontario trial level decisions outside of the employment context (Mainland Sawmills et al v. IWA – Canada et al and P.M. v. Evangelista Estate).

Judge Focuses on RCMP’s Failure to Investigate

The trial judge found that the plaintiff had proven each branch of the test for harassment. In particular, she underlined the RCMP’s failure to conduct a proper investigation following the plaintiff’s complaints to upper management and found that this failure was the actual and proximate cause of his emotional distress:

I find that in his emails to C.O. Seguin, D/Commr. Bourduas and Commr. Paulson, as well as others, Mr. Merrifield was taking extraordinary steps to contact upper management with the hope of resolving his concerns. … Commr. Paulson stated that after he received the email, he referred it to Asst/Commr. White who in addition to being the commanding officer of O division (C.O. Seguin had retired) was also in charge of Human Resources. He expected that the issues would be addressed. He was assured that Asst/Commr. White “was on top of it.”

Mr. Merrifield received no response to this email. His depression continued. He stated that he suffered severely and had post-traumatic stress disorder resulting from the events that had transpired. Even though Asst/Commr. White and C/Supt. Mazerolle knew that Mr. Merrifield’s statement about Supt. Proulx was substantiated, they took no steps to respond to this email nor did they delegate this task to anyone else. I find that the RCMP’s conduct in ignoring this email went beyond all standards of what is right or decent.  I find that it was one of the actual and proximate causes of Mr. Merrifield’s severe emotional distress.

Distinction From Intentional Infliction of Mental Suffering

The plaintiff also succeeded in establishing intentional infliction of mental suffering ‒ a more difficult test than for harassment. As stated by the trial judge, “[t]he test for intentional infliction of mental suffering is similar to the test for harassment. One difference is that in addition to being outrageous, the conduct resulting in intentional infliction of mental suffering must also be flagrant. Another difference is that the plaintiff must show that he suffered a visible and provable illness.” It is noteworthy that the trial judge found that the plaintiff suffered from a visible and provable illness despite the plaintiff’s failure to call medical evidence. Instead the trial judge relied on the fact that the RCMP Health Services did not challenge the plaintiff’s need for sick leave.

Damages

The plaintiff was awarded general damages of $100,000 in relation to harassment and intentional infliction of mental suffering and $41,000 in special damages for income lost due to career setbacks.

Takeaways

The uncertainty resulting from inconsistent lower court decisions on the existence of a tort of harassment will likely not be resolved until an appellate level decision is rendered. That said, the willingness of the trial judge in this case to award significant damages for harassing conduct by superiors where the employer failed to properly investigate the plaintiff’s complaint should not be discounted. The employer’s obligation is two-fold: they need to follow a proper protocol for investigating a complaint and take appropriate corrective action where harassment is substantiated. For guidance in conducting workplace investigations, please refer to our earlier blog post here.