Fewer court options for workplace harassment victims in Canada

Harassment claims are an all-too-frequent reality in the modern workplace.

Depending on the circumstances, affected employees may have several avenues open to them to raise harassment concerns, including through the human rights tribunal or the workers compensation regime. When it comes to harassment claims in court, the road has now been significantly narrowed. While there are still certain civil claims available to employees experiencing harassment at work, the Ontario Court of Appeal has recently confirmed that there is no “tort” of harassment in Canada. Simply put, this means that an employee cannot seek damages for alleged harassment in court.

The Merrifield vs. Canada (Attorney General) case arose in the context of alleged workplace harassment. The plaintiff, an RCMP officer, claimed that his managers had embarked on a course of harassment when they made various management decisions, including issuing a warning regarding unauthorized media appearances, reassigning him to a new unit due to a perceived conflict of interest, launching an investigation into credit card misuse and refusing a requested transfer.

The plaintiff started a sick leave following a reassignment in January 2006 but returned to work after a few months. The trial judge found that the managers had harassed the plaintiff and caused him mental distress. He was awarded nearly $1 million in damages, costs and special costs.

In an uncharacteristically stinging rebuke of the lower court’s decision, the Court of Appeal found that the trial judge had committed serious legal and factual errors. Most importantly, the judge had erred in concluding that there was a tort of harassment in Ontario (which had never been recognized in Canada before). A “tort” is a type of legal claim that seeks damages for injuries allegedly sustained because of the acts or omissions of another person. While dozens of tort claims have been established by courts in common-law jurisdictions over many years, it is unusual for a court to recognize a new tort.

The Court of Appeal commented that it might be possible to recognize a tort of harassment in the future, but that this was not the right case. Further, the court noted that there were other available claims to address similar conduct, such as the recognized tort of intentional infliction of mental suffering.

Ultimately, the Court of Appeal found that the plaintiff had not made out any claims and dismissed his case entirely. The Court of Appeal awarded costs of trial and appeal to the RCMP, which is likely to be a substantial sum.

While this case is generally helpful for employers, it does not mean that employers do not have to address harassment in the workplace. True workplace harassment is clearly unacceptable. Employers have a legal duty to prevent and address bullying and harassment under workers compensation legislation, and employees have several avenues to seek redress (apart from tort claims) including complaints to WorkSafeBC and constructive dismissal lawsuits. Apart from the legal risks, harassment in the workplace is bad for business and employee morale. As many businesses know, employee retention is a significant challenge in B.C.’s booming economy, and employees will not hesitate to move on if the workplace is not supportive.

Although it did not factor into the court’s decision in this case, employers should also keep in mind that employees are not generally allowed to sue their employers for injuries arising out of or in the course of employment (including psychological injuries).

According to the Workers Compensation Act, those types of claims must be addressed through the workers compensation regime. This restriction on lawsuits applies even if WorkSafeBC refuses coverage. 

Chris Munroe practises in all areas of labour, employment and human rights law at Roper Greyell LLP.

While every effort has been made to ensure this article’s accuracy, readers should seek advice on matters of concern. The article is for general information purposes and does not constitute legal advice.