Merrifield v Canada (Attorney General), 2019 ONCA 205 is the first case in which a Canadian appellate court has been required to determine whether a common law tort of harassment exists.
The Ontario Court of Appeal has decided that it does not.
Ontario Superior Court of Justice
Relying on four trial-level decisions, the trial judge held that the tort of harassment exists as a cause-of-action in Ontario and that the elements of the tort are:
- Outrageous conduct;
- Intention to cause, or reckless disregard for causing, emotional distress;
- Suffering of severe or extreme emotional distress; and
- The outrageous conduct is the actual and proximate cause of the emotional distress.
Ontario Court of Appeal
The Ontario Court of Appeal held that, in sum, the four trial-level decisions assume rather than establish the existence of the tort or its elements.
Contrasting the case at bar with Jones v Tsige, which recognized a new tort of intrusion upon seclusion, the Court of Appeal noted that the case at bar:
- Lacked evidence of Canadian legal developments, foreign judicial authority, academic authority, or compelling policy rationales to support the creation of a new tort of harassment;
- Lacked facts that cry out for a novel legal remedy;
- Had alternative legal remedies available for redress.
In reference to the last factor, the Court of Appeal noted that Ontario law already has a well-established tort of intentional infliction of mental suffering (“IIMS“), which requires:
- Flagrant and outrageous conduct;
- Calculated to produce harm; and
- Results in viable and provable illness.
The Court of Appeal noted that the proposed elements of the tort of harassment are similar to, but less onerous than, the elements of IIMS:
- Whereas IIMS requires flagrant and outrageous conduct, the proposed harassment tort would require only outrageous conduct;
- While IIMS is an intentional tort requiring a subjective intention or knowledge, the proposed harassment tort would require either intention or objectively-defined reckless disregard;
- While IIMS requires conduct that is the proximate cause of a visible and provable illness, the proposed harassment tort would only require causing severe or extreme emotional distress.
Accordingly, the Court of Appeal concluded that the circumstances did not present a compelling reason to recognize a new tort of harassment. However, the Court added that it was not foreclosing the development of a properly conceived tort of harassment that might apply in appropriate contexts.