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Wednesday, April 10, 2019 @ 9:07 AM  

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Appeal by the defendant employer and supervisors in respect of a finding of liability for the harassment of the plaintiff employee. The plaintiff was a junior RCMP constable in 2005, promoted to corporal in 2009 and sergeant in 2014. His relations with management became strained due to failure to report a conflict of interest, his appearance on a radio show, and concerns that led to investigation into the plaintiff’s misuse of a corporate credit card. The strained relations resulted in a transfer between units and removal from certain assignments. The plaintiff sued the Crown and certain individual RCMP members. The trial judge recognized a new freestanding tort of harassment and found that many of the managerial decisions made in relation to the plaintiff constituted harassment. In addition, she found the defendants liable for intentional infliction of mental suffering. The trial judge awarded the plaintiff $100,000 in general damages, $41,000 in special damages and $825,000 in costs. The defendants appealed the finding of liability. The plaintiff cross-appealed the quantification of damages.

HELD: Appeal allowed; cross-appeal dismissed. The trial judge erred by recognizing a new common law tort of harassment. The authorities relied upon by the trial judge assumed the existence of the tort for the purpose of applications to dismiss the claims and thus could not be relied upon as confirmatory of the tort or its elements. There was no judicial or academic authority, or compelling policy rationale, for the recognition of a new common law tort. In addition, the trial judge erred in applying the test for the intentional infliction of mental suffering and made palpable and overriding errors in much of her fact-finding involving the defendants’ authority to investigate the plaintiff’s misuse of his RCMP credit card. There was no evidence of conduct intended to cause harm, knowledge that harm was certain to follow from the decision to order an investigation, or establishment of a causal connection. While the foregoing was sufficient to dispose of the appeal, the court found additional unreasonable findings with respect to the plaintiff’s rationalization of his conduct, the potential conflict of interest, and the plaintiff’s e-mail correspondence.

Merrifield v. Canada (Attorney General), [2019] O.J. No. 1322, Ontario Court of Appeal, R.G. Juriansz, D.M. Brown and G. Huscroft JJ.A., March 15, 2019. Digest No. TLD-April82019007