Court of Appeal Decision of the Week

Recognizing New Torts: How Does That Work?

Case: Merrifield v. Canada (Attorney General), 2019 ONCA 205 (CanLII)

Keywords: RCMP; Tort of Harassment; Recognition of New Tort; Evolution of Common Law

Synopsis:

Mr. Peter Merrifield, a member of the RCMP is assigned to Threat Assessment Group, a unit responsible for providing protective services to federal politicians, including the Prime Minister.

RCMP management determine Mr. Merrifield had run for nomination to be the Conservative Party’s candidate in the riding of Barrie without complying with applicable RCMP regulations.

It is decided Mr. Merrifield is in a potential conflict of interest position. He is transferred to another unit not responsible for protecting politicians.

Mr. Merrifield is subsequently refused assignment to the Special Operations Centre and transferred to Customs and Excise.

A formal investigation is also commenced, pursuant to Part IV of the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10 to establish whether Mr. Merrifield’s use of his credit card had contravened the RCMP’s Code of Conduct.

Mr. Merrifield commences an action against the Crown, on behalf of the RCMP and individual members seeking damages for mental distress suffered as a result of managerial bullying and harassment.

The Trial Judge allows the action and awards $100,000 in general damages, $41,000 in special damages, and $825,000 in costs. She also recognizes a new, freestanding tort of harassment in Ontario. The Court of Appeal concludes the Trial Judge erred.

Importance:

For the Trial Judge, in order to establish an entitlement to damages for harassment, a plaintiff must show:

  1. that the defendants engaged in outrageous conduct toward the plaintiff;
  2. that the defendants’ conduct was intended to cause emotional distress and/or that they were reckless as to its impact;
  3. that the plaintiff did suffer severe or extreme emotional distress; and
  4. that the defendants’ outrageous conduct was the actual and proximate cause of the emotional distress. (See para. 15).

The Court of Appeal noted the similarities between the tort of harassment, as recognized by the Trial Judge, and the already-existing tort of intentional infliction of mental suffering (“IIMS”):

Plainly, the elements of the tort of harassment recognized by the trial judge are similar to, but less onerous than, the elements of IIMS. Put another way, it is more difficult to establish the tort of IIMS than the proposed tort of harassment, not least because IIMS is an intentional tort, whereas harassment would operate as a negligence-based tort. (See para. 48).

For the Court of Appeal, the tort of IIMS provides a well-established basis for claiming damages for mental suffering, including in the employment context. While the Court declined to “foreclose the development of a properly conceived tort of harassment” in the future, it ultimately concluded there was “no compelling reason” to recognize a new tort in this case. (See para. 53).

If not now, then when should Canadian courts recognize a new tort? How does the common law develop? Should Canadian courts recognize a new tort of harassment? These are significant questions of public importance addressed by the decision of the Court of Appeal.

The Court of Appeal had this to say in response to such questions:

To pose the question in this way is to suggest that the recognition of new torts is, in essence, a matter of judicial discretion – that the court can create a new tort anytime it considers it appropriate to do so. But that is not how the common law works, nor is it the way the common law should work. (See para. 38).

Citing Watkins v. Olafson, 1989 CanLII 36 (SCC), the Court of Appeal noted that common law change is “evolutionary in nature: it proceeds slowly and incrementally rather than quickly and dramatically”. (See para. 20). The Court also suggested, citing R. v. Salituro, 1991 CanLII 17 (SCC) and R. v. Mann, 2004 SCC 52 (CanLII) that significant changes to the law are better left to legislatures. In doing so, the Court of Appeal invoked the principle that democratic legislatures should assume the major responsibility for making legal reforms. (See paras. 21-22).

Starting from these premises, the Court of Appeal endorsed the approach taken by Sharpe J.A. in Jones v. Tsige, 2012 ONCA 32 (CanLII) – the decision in which the Court of Appeal recognized the tort of intrusion upon seclusion:

Far from being created from whole cloth, the intrusion upon seclusion tort was grounded in what Sharpe J.A. identified as an emerging acceptance of claims for breach of privacy. He carefully reviewed Ontario and Canadian case law, in which he discerned both supportive dicta and a refusal to reject the existence of the tort, and provincial legislation that established a right to privacy while not foreclosing common law development. He also considered academic scholarship, much of which supported the existence of a right to privacy. He drew upon American tort law, which recognizes a right to privacy, as well as the law of the United Kingdom, Australia, and New Zealand. He also noted societal change – in particular, technological developments that pose a threat to personal privacy – and the impetus for reform that it created. “[M]ost importantly,” he said, “we are presented in this case with facts that cry out for a remedy”: at para. 69. (See para. 25).

From the foregoing, the Court of Appeal determined there was simply no basis to recognize a new tort here. For example, the decision below could not be understood as “a culmination of a number of related legal developments”. (See para. 39). Moreover, there was no academic authority or compelling policy reasons to recognize a new tort. (See para. 40). Finally, unlike the circumstance in Jones v. Tsige, this was not a case “whose facts cry out for the creation of a novel legal remedy”. (See para. 41).

For the Court of Appeal, that remedy (difficult to access though it may be) already exists at Canadian law: the tort of IIMS. (See para. 42).

Counsel for the Appellants: Sean Gaudet and James Gorham (Justice Canada, Toronto)

Counsel for the Respondent: Laura Young (Laura Young Law Offices, Toronto) & John Kingman Phillips and John-Otto Phillips (Waddell Phillips, Toronto)

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Posted: Wednesday, March 20, 2019