Mar 2019 Charity & NFP Law Update
On March 15, 2019, the Ontario Court of Appeal (the “Court”) released its decision in Merrifield v Canada (Attorney General), overturning a lower court decision (discussed in the Charity & NFP Law Bulletin No. 402) that had established a freestanding tort of harassment. In the lower court decision, Merrifield, a police officer, successfully sued his employer, the Royal Canadian Mounted Police, for harassment as well as intentional infliction of mental suffering (“IMSS”) and was awarded a judgment of $100,000 for general damages as a result of such harassment.
On appeal, the Court found that the trial judge had erred in recognizing a tort of harassment, in the application of the test for IMSS, and that the judge had made palpable and overriding errors in “much of her fact-finding.” Of interest to charities and not-for-profits is the Court’s analysis with respect to its refusal to recognize a separate tort of harassment. The Court noted that “common law change is evolutionary in nature: it proceeds slowly and incrementally rather than quickly and dramatically.” As examples, the Court cited Bhasin v Hrynew (in which the Supreme Court of Canada recognized a duty of honest contractual performance) and Jones v Tsige, which was discussed in Charity Law Bulletin No. 277, (in which the Ontario Court of Appeal recognized the tort of intrusion upon seclusion) and emphasized that these cases merely confirmed an existing duty and tort.
While the Court did not “foreclose the development” of the tort of harassment, it stated that there was a lack of compelling evidence in this case to support the existence of the tort. The Court found that the cases relied upon by the trial judge confirmed “neither the existence of the tort nor its elements.” Further, the Court had not been provided with any foreign judicial authority supporting the recognition of the tort, nor any academic authority or policy rationale that would compel the Court to nevertheless recognize a tort of harassment and its requisite elements.
While the Merrifield appeal decision confirms that, for now, an employee cannot sue an employer for the common law tort of harassment, charities and not-for-profits must be mindful that employees still have statutory protections against harassment under any of the enumerated grounds in subsection 5(2) of the Ontario Human Rights Code. As such, charities and not-for-profits still need to implement effective workplace harassment policies to manage the risk with respect to harassment claims.