The Tort of harassment in Ontario [video]

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The tort of harassment in Ontario is recognized in 2017. While the decision has been appealed, this new tort has potentially far reaching implications in employment law. This lecture explains the background of this tort and the elements to prove a case for harassment.

This lecture is taught by Amer Mushtaq, LL.B., M. Engineering , B.Sc. (Hons.), who is the Principal and Founder of Formative LLP.   Through his YouTube channel, YouCounsel, Amer shares practical advice from his years of legal experience to help anyone access justice and achieve their goals.  Subscribe today to learn more.

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Welcome everyone, this is Amer Mushtaq from You Counsel. Today, we’ll talk about the Tort of Harassment in Ontario. I’ll explain to you why we are talking about this particular tort today and not any of the other torts. Why is this tort relevant, why is it important, and what are some of the latest developments in this area of law? So, let’s jump right into it.

We begin with our usual disclaimer that this course is not legal advice, so, if you have any specific questions you must contact a lawyer or paralegal or contact the Law Society for Upper Canada.

If you are familiar with tort, then you have an idea of what I’m talking about in terms of the general law, but if you don’t, I will talk about that very, very briefly I’ll have a separate lecture on torts and contracts later on, but let’s briefly talk about it … so, at least you can understand the fundamental concept. So, let me explain this by giving you an example, when you have a car accident and leaving aside what happens between the insurance companies, if you end up or decide to sue the driver of the other car because he or she had caused the accident. Then you do that in a tort. There is no contractual relationship between you and that driver, you have never signed a contract that that person will drive carefully and you would drive carefully, it comes under tort law meaning that there is a general duty on everyone to follow a good behavior, meaning drive carefully. And so, that is the tort law, and in circumstances where parties have a specific contract amongst them, whether in writing or oral that comes in at the jurisdiction of contract law. So, this Tort of Harassment is a tort and that’s the category, it’s not a contractual legal issue.

The other thing I want to mention is that new tort question marks and so, the Tort of Harassment is that something new, or has it always existed? A lot of people who are not familiar with our legal system, they believe that it makes sense that a Tort of Harassment must exist because that’s an unfairness that happens all the time, and when they come to lawyers like me they find this in our response that the Tort of Harassment either does not exist in Ontario at all or the law is at least unclear whether the tort exists or not. But a majority of lawyers, if you had come to them last year about a harassment issue, they would explain to you that there is nothing in the law that allows you to commence a tort action on the basis of harassment. So, most lawyers will explain to you that this is really a new tort, a new development in Ontario law, and so, that’s why it today’s discussion is important.

And how did this tort come into being? There is a case called Merrifield versus the Attorney General, it’s a 2017 case, this is the title or the citation of the case you can find it on Google, if you type this in you will find that the case is available. Also know that ‘A’ is a 2017 case, ‘B’ It’s an Ontario case, and ‘C’ it’s from the Ontario Superior Court, so, it’s the lowest level of court in Ontario, so that’s the case and what you want to know is that the case is already appealed. So, what that means is that even though the judge in this case that that there is a Tort of Harassment that exists, the Appellate Court, the Court of Appeal of Ontario or the Supreme Court of Canada if it goes all the way there, may decide that the tort does not exist. So, as far as the Appellate process is concerned it is still being appealed, so, we will know in the future whether this tort exists or not. But as long as the matter stand today the tort exists in Ontario as 2017.

Okay, I’ll have some discussion of about harassment in the Employment Law context and that’s where my expertise is and a lot of issues arise with respect to harassment in Employment Law context. So, let me explain by saying by giving you some examples, when you as a plaintiff come to a lawyer or to the judicial system, you were approaching the judicial system because there was some unfairness that you had experienced and you want that to be remedied. But you cannot go to a court and basically say, “that this was the unfairness and I want it remedied”. The way our judicial system is structured is that you have to have what’s called a Cause of Action. So, your unfairness need to fit into a category of a Cause of Action and then you meet the elements of that Cause of Action and then you get your remedy so, there’s no general unfairness remedies available in court. Some people who argue there are, because there’s an equitable jurisdiction of the court but that’s a separate discussion. Generally speaking, you have to have a Cause of Action.

Now, what kind of unfairness and employment law contacts you can deal with, I’ll give you an example. The client comes to me and says, “that I was denied this promotion unfairly, I met all the criteria, I had the best performance and everything and ‘X’ was the person who got the promotion and that was unfair, I want you to bring an action against the employer”. And I will say, “I’m sorry if you don’t have a contractual clause that says that this is the promotion criteria which will be followed, you cannot just simply ask the court for that general unfairness right”. So, you there’s no sort of Tort of Unfairness so, you cannot do that.

So, what I will do in the analysis of that case is I’ll ask certain follow up questions to determine whether this case can fall into discrimination categories. So I will probe the client and ask, “why do you believe you were not given the promotion? Does it relate to any of the criteria in the Human Rights Code? So, did you not get promotion because of your race, because if you ethnic origin, because of your creed, sexual orientation, your sex, family status, all of those things are about 15, 16 types of discrimination outlined in the human rights code”. So, if the unfairness and promotion was because of one of those grounds and partially, it doesn’t have to be completely, but if your background, or your religion, or your disability, or your sexual orientation was one of the factors in many, in the employer deciding not to promote you, leaving aside all of the good things that would allow you to be entitled to that position, then, I have now this opportunity to bring a case against the employer on the basis of discrimination. So, that’s the Cause of Action that I am putting the square in this hole of discrimination. So, that’s how the legal process when we are going to a court we have to get to those categories.

So, that’s the challenge with harassment, that when someone comes to me as an employment lawyer and states that, “I was harassed by my coworker, by my supervisor over such and such time, and I want to bring the court action absent you know, a discrimination or absent something else”, there wasn’t a category of harassment that that we could sue that person and get remedies. So, that was the challenge in Employment Law context and obviously, in Personal Injury cases there’s a similar challenge.

So, what were if someone comes to us and the evidence indicates that the person was harassed but we cannot bring a Tort of Harassment claim, what would we do? So, we do have some options and again this is like pegging the square into a whole kind of situation.

So, one option was or has is to bring a claim for Intentional Infliction of Mental Suffering, this is also a tort, it’s called an intentional tort, and it has its own criteria and you have to meet those tests and then prove to the court or demonstrate to the court that the actions of the perpetrator were indeed intentional Infliction of Mental Suffering on you that was one category. We have another category called there is a Duty of Good Faith and Fair Dealing on the employer to deal with its employees, so, that’s a category or Cause of Action that can be alleged.

There’s also a Duty of Honesty in Contractual Performance, which came about a couple years ago or so, by Supreme Court of Canada, and there are some other categories. But the point of all of this is that a simple harassment case which on the facts of the case, an ordinary person will consider this to be a harassment, you were not able to go to court and claim harassment and get remedies. You would have to find some other categories here and then tell your story and hope that you will meet the criteria of these categories and be successful in your claim so, there was no Tort of Harassment.

Now, comes the Merrifield case in 2017 and this case was about a member of Merrifield, was a member of R.C.M.P. who was a victim of harassment and bullying by the superiors, and the lawyers brought this action. And one of the challenges in that case was again, that it was very hard to put the case into the category of simply Intentional Infliction of Mental Suffering or simply Good Faith and Duty or Breach of Good Faith and Fair Dealing. So, the lawyers then went ahead and then brought a case for the Tort of Harassment in addition to the Intentional Infliction, and they were successful in both on harassment and intentional Infliction. So, you will have a question in your mind that if the Tort of Harassment did not exist then why would they be able to get a Tort of Harassment judgment in this case? That question can be answered if you understand that it’s not that there are finite numbers of Causes of Action and they cannot grow, that’s not how the judicial system works. There’s always an opportunity to allege new Causes of Action, and the court does have a power if the fairness of the case demands that those new Causes of Action or that new Cause of Action should be acknowledged by the court then the court will go ahead and do it.

So, in this case the court, if you if you read this case on Google you will notice that the court had a very lengthy analysis and described why this case was not suitable only on the basis of tort of Intentional Infliction of Mental Suffering, why the Tort of Harassment was an appropriate category and so, that is explained. It’s a lengthy decision, but it’s worth reading because you understand what is happening in the judge’s mind in terms of coming to the conclusion that this is time that the Tort of Harassment should be recognized in Ontario.

So, how do you go about proving the Tort of Harassment? There are four elements of course of harassment of harassment and you have to prove each one of them to get your remedies. First one is, was the conduct of the defendant towards the plaintiff outrageous? And so, the conduct must be outrageous. And I’ll give you a sort of an important distinction. In the Tort of Harassment, the conduct needs only to be outrageous. If you are proving Intentional Infliction of Mental Suffering, the conduct not only needs to be outrageous, but it also must be flagrant. These are these are specific English words with specific meaning in the legal context, but in Intentional Infliction you not only have to prove that the conduct was outrageous, but it was also flagrant. So, there is a higher demand in terms of the Tort of Intentional Infliction of Mental Suffering.

Now, if you have proven that the conduct was outrageous the second element is did the defendant intend to cause emotional distress or did he/she have a reckless disregard for causing the plaintiff to suffer from emotional distress? So, there has to be an intention to cause emotional distress or at the minimum, there has to be a reckless disregard. Not just simple disregard but a disregard that is reckless, so, a bit higher than a simple disregard, and if that’s the case, then you meet the element second element of the Tort of Harassment.

Element number three is that, did the plaintiff suffer from severe or extreme emotional distress? And so, that means just being upset or just having a little bit of hurt feelings is not sufficient, there has to be severe or extreme emotional distress. And again there is a difference here between the Tort of Harassment and the Intentional Infliction of Mental Suffering. In that case, the harm to the plaintiff must be a provable and visible illness. So, visible or provable, that is the word that is used in the Tort of Intentional Infliction of Mental Suffering, which is a bit higher, a requirement than the Tort of Harassment. So, that’s why the Tort of Harassment will be relatively easier category to prove with respect to the Intentional Infliction of Mental Suffering.

The fourth element is, was the outrageous conduct of the defendant, the actual and proximate cause of the emotional distress? So, if somebody suffered from severe or extreme emotional distress, how do you know whether that distress was caused by the outrageous conduct or was there something else going on in the individual’s life? Some family issues some other issues that were nothing to do with the defendant, but if they caused the emotional distress then obviously the defendant should not be liable for the damages. So, those are the four elements and we’ll get into those once we get to talking about the Tort of Harassment in more detail. The idea of this lecture is for you to understand the basic concept of what are the elements of Tort of Harassment. So, you establish those four elements and you can get damages for the Tort of Harassment.

So, in conclusion one of the advantages of having this new sort of Tort of Harassment is really calling a spade a spade. If it looks like harassment why not call it harassment? And why not have a category that is exclusively catered for harassment issues? And we know, at least in Ontario, that at least the legislature has been talking about harassment issues in the workplace for a long time. At least from 2009 when the Occupational Health and Safety Act was revised and we had the workplace bullying issues and harassment issues included in the Occupational Health and Safety Act and there has been more legislation put forth. But this is for the court to now acknowledge that there are a lot of harassment issues that are sufficiently grave, that they need to be dealt with in a separate category in the courts.

It is a new development in tort law as I said, it did not exist in Ontario, or at least it wasn’t clear that the Tort of Harassment existed that there were not a lot of cases that will talk about Tort of Harassment in Ontario. So, the 2017 Merrifield case is the first one that comes out clearly and openly and acknowledges Tort of Harassment. I want to remind you that this case is appealed, so, if the Appellate Court Ontario Court of Appeal decides that there is no Tort of Harassment, that this matter could have been dealt with in any other torts, then you can scrap my lecture and wait for my new lecture on what the law would be at that time. But as far as we’re concerned now, there is this tort that exist and people can benefit from this tort in appropriate circumstances. If you have any questions or comments please feel free to contact us and we look forward to seeing you in the next lecture. Thanks for watching.

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