Background
The plaintiff, a junior RCMP constable, commenced a civil claim alleging that he had been bullied and harassed by his superiors. After analyzing past case law, the trial judge recognized an independent tort of harassment and the defendants were found liable for both the torts of harassment and intentional infliction of mental suffering. The plaintiff was awarded $100,000 in general damages, $41,000 in special damages, and $825,000 in costs. The Attorney General of Canada appealed the trial-level decision.
The Result
The Court of Appeal overturned the trial decision and concluded that the trial judge had erred in recognizing a tort of harassment, erred in applying the test for intentional infliction of mental suffering and made palpable and overriding errors in her fact-finding.
The Court considered the cases relied upon by the trial judge and concluded that “authority does not support the existence of a tort of harassment.” The Court noted that the plaintiff had not presented Canadian or foreign judicial authority supporting the recognition of a new tort of harassment, nor any academic authority or compelling policy rationale for recognizing a new tort. Additionally, the Court noted that this was “not a case whose facts cry out for the creation of a novel legal remedy”. Rather, the plaintiff had other legal remedies available such as the tort of intentional infliction of mental suffering.
The Court compared the elements of the tort of harassment as recognized by the trial judge to the elements of the well-established tort of intentional infliction of mental suffering, finding that the elements of the tort of harassment were similar to, but less onerous than the elements of intentional infliction of mental suffering.
After having rejected recognizing the tort of harassment, the Court found that the tort of intentional infliction of mental suffering had not been made out based on the facts of the case.
Despite the Court’s finding that the tort of harassment should not be recognized in this case, the Court left open the possibility of a “properly conceived tort of harassment that might apply in appropriate contexts.”
It is unclear yet whether the plaintiff will be seeking leave to appeal this decision to the Supreme Court.