New “Tort of Harassment” Allows
Employees to Sue for Damages
RECENT RULING ON HARASSMENT BY THE ONTARIO
SUPERIOR COURT IS A WAKEUP CALL FOR EMPLOYERS
By Donna Marshall, M.A.
Employers in Ontario are at greater risk of litigation from
employees who have been harassed in their workplace.
Referred to as the “tort of harassment” and “harassment as
an independent cause of action,” the Superior Court ruling
makes it easier for employees to sue their employer for damages
resulting from harassment.
WHAT IS TORT LAW?
Tort law provides compensation to individuals who have been
injured (including mental injury) by the wrongdoing of others,
whether through negligence or intention.
“While contract law deals with governing contracts between
parties, tort law is concerned with situations where one person
harms another,” said Judy Hamilton, LL.B., associate at Friedman
Law Professional Corporation in Toronto.
There is ever increasing case law to support the claim that workplace
harassment harms individuals by causing mental injury. One
such case was Boucher v. Wal-Mart Canada Corp., where the court
found the plaintiff ’s supervisor, “…belittled, humiliated and demeaned
Boucher the plaintiff continuously and unrelentingly,
often in front of co-workers, for nearly six months.” The judge determined
that this constituted flagrant and outrageous conduct.
The defendant was awarded $410,000.
“Most tort actions have to do with one party breaching a duty
to another person because of the relationship between the parties,”
said Hamilton. In the workplace, employers have a duty to protect
employees from injury, including mental injury caused by acts of
The ruling on which the new “tort of harassment” is based concerned
an RCMP officer (Merrifield v. The Attorney General,
2017) who sued his employer for wide ranging acts of harassment
perpetrated over an extended period of time. In her ruling
of February 2017, the Honourable Justice Mary E. Vallee of the
Ontario Superior Court of Justice determined that the tort of harassment
does exist and that it is recognized as a cause of action
in Ontario. The court awarded Merrifield general damages against
his employer for harassment and intentional infliction of mental
suffering in the amount of $100,000.
HRPROFESSIONALNOW.CA ❚ AUGUST 2017 ❚ 15