Employment & Labour

Civil tort rejection won’t prevent harassment claims

By AdvocateDaily.com Staff

Harassment claims will continue to flow despite the Ontario Court of Appeal’s rejection of it as a freestanding civil tort, says Toronto employment lawyer Kumail Karimjee.

In the recent decision, a unanimous three-judge panel of Ontario’s top court overturned a trial judge’s decision to recognize the civil tort of harassment as part of a $140,000 award to a former RCMP officer.

The appeal court panel found that there was “no compelling reason to recognize a new tort of harassment in this case,” particularly considering the similarities between the alleged new tort and the existing one of intentional infliction of mental suffering.

But Karimjee, principal of Karimjee Law, says multiple legal avenues remain for the advancement of harassment allegations.

In addition to the province’s Human Rights Code that specifically addresses sexual harassment allegations, he points out that Ontario’s Occupational Health and Safety Act and Workplace Safety and Insurance Act Policy have provisions to deal with workplace harassment and violence, and related mental stress.

“In the current climate, where there is increasing legal and practical appreciation of bullying and harassment within workplaces more generally, I think we will continue to see these issues litigated, perhaps through other recognized torts or existing legal remedies,” Karimjee tells AdvocateDaily.com.

Still, he says the result is a setback for plaintiffs, as a result of the higher bar required by the intentional infliction of mental suffering compared with harassment, which could be met with negligence-based harm.

“It would have been easier to establish the tort of harassment, and to the extent that the evidence supports only recklessness or negligence on the part of the defendant, rather than intention, then the claim will not now be made out,” he says.

The case has its roots in 2005, when the plaintiff police officer joined the nomination race for the federal Conservative Party in Barrie, Ont. He alleged his political run upset superiors in the RCMP who took issue with campaign materials referencing the man’s support for the traditional concept of marriage and the abolition of the long-gun registry.

Following his return to police work, the officer was the subject of four investigations into alleged code-of-conduct breaches, prompting him to launch his harassment claim in 2013, alleging groundless investigations, a punitive transfer, and bullying by his bosses that caused him severe emotional distress.

The trial judge sided with the plaintiff, finding that he had not only proven the new tort of harassment, but also the more stringent test for intentional infliction of mental suffering, awarding him $100,000 for the combined tort damages, plus a further $40,000 in special damages.

However, the appeal court reversed the judgment, concluding the case was not one “whose facts cry out for the creation of a novel legal remedy.” The judges also found that the trial judge reached the wrong conclusion on intentional infliction of mental suffering, writing that “palpable and overriding errors in the trial judge’s fact-finding and the incorrect application of the legal test” meant the finding could not stand.

“I think the decision is a good reminder about the incremental nature of the development of the common law,” says Karimjee, who was not involved in the matter and comments generally. “From a practitioner’s perspective, it provides some useful guidance about what you need to do when presenting a case that seeks to push the boundaries.”

And he expects further attempts to test those limits at some point in the future — indeed the appeal court panel left the door open to further claims, writing that they “do not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts.”

“In a climate in which there has been a broader social recognition of the problem of harassment, as reflected in legislative change, it might have helped to move the dial, but the court is saying there needs to be more judicially underlying the creation of a new tort,” Karimjee says. “That arguably creates a bit of a disconnect between the common law and the societal shift taking place, but the law sometimes takes time to catch up.”

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