In the main action, the Plaintiff alleged that his mortgage agent and brokerage were negligent and liable negligent misrepresentation after the Plaintiff failed to close on the purchase of a property in Brantford, Ontario (the “Property”).  While the Plaintiff secured a suitable mortgage commitment from an institutional lender well in advance of the closing date, the mortgage proceeds were not advanced in time for the intended closing on June 28, 2018, or the extended closing date of July 13, 2018.  As a result, the Plaintiff sought to recover $11,000 in pecuniary damages for the forfeited deposits and associated fees following the failed purchase of the Property and $5,000 in aggravated damages.  The Plaintiff sued the mortgage agent and brokerage that assisted him with the transaction (the “Defendants”) for his financial losses.

The Defendants denied any liability in the main action and issued a Defendant’s Claim against our client (the “Third Party Brokerage”) alleging that one of its mortgage agents was solely responsible for assisting the Plaintiff with securing mortgage financing.  The Defendants asserted that any broker related failings were the responsibility of the Third Party Brokerage.

In turn, the Third Party Brokerage denied that they acted for the Plaintiff in connection with the proposed mortgage financing but, in fact, acted as the brokerage representing the lender.

The trial judge found there was no evidentiary basis for finding that the Defendants or the Third Party Brokerage were responsible for any act or omission that could be connected to the lender’s failure to finance the purchase in time for the original and extended closing dates.  Notably, the trial judge also found that the Plaintiff did not rely on the Third Party Brokerage or its mortgage agent in connection with the failed purchase or the lost deposits.

In the absence of sufficient proof to establish causation and a breach of the standard of care, the main action and the Defendants’ Claim were dismissed with costs to be determined.

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This class action initially arose from an infectious disease outbreak at the Rothbart Centre for Pain Care in Toronto. The outbreak stemmed from epidural injections administered by the appellant anesthesiologist, Dr. Stephen James (“Dr. James”). The injections were administered in an area close to the spine as a pain relief treatment. After receiving the injections, patients subsequently developed meningitis and an abscess in or around their spine among other serious infections. An investigation later found that the outbreak was caused by inadequate Infection Prevention and Control in respect of the injections designed to reduce the risk of transmission of microorganisms in health care settings.

In 2021, Voula successfully defended nurses in Ontario’s first common issues trial for a medical malpractice class action in Levac v James, 2021 ONSC 5971. At trial, Justice Morgan held that there was no sustainable legal claim against any of the nurses and made a Sanderson Order, which required Dr. James to pay the nurses’ legal costs. Dr. James sought leave to appeal the Sanderson Order.

On appeal, Voula successfully persuaded the Court of Appeal to deny Dr. James leave to appeal Justice Morgan’s decision on costs. For context, Dr. James launched a crossclaim against the nurses in the initial action. At trial, Dr. James was found to be driving the case against the nurses and was considered by Justice Morgan to be primarily responsible for their remaining in the action. These proved to be key factors in Justice Morgan’s order that Dr. James pay the nurses’ costs. On appeal, Sossin J.A., for a unanimous Court, upheld the Sanderson Order and denied Dr. James leave to appeal. In this regard, Sossin J.A. broadly held that the general rule that costs follow the event is equally applicable to class proceedings in Ontario, even where liability may ultimately be rebutted in respect of the individual trials of class members. Sossin J.A. observed that Dr. James, in oral argument on appeal, still expressed an intention to pursue his claims against the nurses if evidence of the nurses’ negligence was adduced at the individual trials despite Justice Morgan’s finding that Dr. James’ case against the nurses was “remarkably thin” and disclosed “no sustainable legal claim.” Further, Sossin J.A. highlighted the deference afforded to trial judges on the issue of costs.

Finally, Sossin J.A. rejected Dr. James’ contention that Justice Morgan had no basis to award the nurses’ costs on a substantial indemnity basis. In awarding substantial indemnity costs at trial, Justice Morgan paid particular attention to the fact that the nurses had made an early attempt to settle the claims against them on a without costs basis and that there was no basis for Dr. James to keep them in the action. Sossin J.A. saw no potential error in Justice Morgan’s assessment of the amounts as “extremely reasonable” and “relatively modest;” likewise, Sossin J.A. observed the deference afforded to trial judges in the context of costs.

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Discoverability, Due Diligence, and the Impact of the Covid-Adjusted Limitation Period

In McAuley v. Canada Post Corporation, 2021 ONSC 4528 (Ont. S.C.J.)., Justice Boswell clarified the rules of discoverability, due diligence, and the impact of the suspension of all limitation periods ordered in the midst of the Covid-19 pandemic. In a motion to amend a claim to add additional parties past the expiry of the presumed date of discovery, Boswell J. ruled in favour of the opposing parties, who argued that the plaintiff had failed to act with due diligence to discover the claim against them. When addressing the Covid-adjusted limitation period, which suspended all limitation periods from March 16, 2020 to September 14, 2020, Justice Boswell stated it simply: “those days do not get counted in the calculation of the limitation period”.

The plaintiff in this action suffered a broken ankle after a slip and fall on a municipal sidewalk in Huntsville in December 2017. The sidewalk was adjacent to a Canada Post Corporation (“CPC”) building. The plaintiff initially commenced an action against the municipality only in April 2018.  Immediately following the fall, it had been brought to the plaintiff’s attention that an eavestrough on the side of the CPC building was not properly maintained. Photographs of the faulty eavestrough were taken by the plaintiff’s wife around that time; however, the plaintiff failed to mention this to his counsel until November 2018.  Thereafter, CPC was put on notice and the plaintiff was advised of the use of a property manager for the premises, JLL. By early February 2019, plaintiff’s counsel was advised that JLL had subcontracted its tasks to Heritage Property Services (“Heritage”), who had retained Always Handy Property Management Ltd. (“Always Handy”) to act as the winter maintenance contractor.

On March 6, 2019, the plaintiff commenced a second action against CPC. The municipality and Heritage were added as third parties, and Always Handy was added as a fourth party, along with JLL. Following documentary disclosure between January 10 and March 13, 2020, the plaintiff sought to amend the claim to add the municipality, JLL, Heritage, and Always Handy as defendants to the main action. The plaintiff claimed it was not until that time that he was alerted to the contractual obligations of the third and fourth parties. The motion was initiated on January 28, 2021, and was opposed by both Heritage and Always Handy on the basis that the limitation period had expired.

In this case, the court found that the actual date of discovery was when the plaintiff’s lawyer was advised of the involvement of Heritage and Always Handy in February 2019. It was further determined that the plaintiff’s failure to notify his counsel of the faulty eavestrough until 11 months after his injury amounted to a lack of due diligence. The court found that a reasonable person in the plaintiff’s circumstances would have provided this information soon after retaining counsel in early 2018. Had the plaintiff done so, the chain of events would have led to a discovery of the claim against Heritage and Always Handy by April 30, 2018.

The determined discovery date of the claim meant that the expiry of the limitation period should have occurred on April 30, 2020. However, all limitation periods in Ontario were suspended during that time, due to the Order made by the provincial government under s. 7.1(2) of the Emergency Management and Civil Protection Act, R.S.O. 1990, c. E.9., Reg. 73/20 (“Reg. 73/20”). As aforementioned, Reg. 73/20 was in force from March 16 to September 14, 2020. The plaintiff argued, and the court agreed, that the impact of Reg. 73/20 was to extend the running of the limitation period by 183 days. The court stated that “all limitation periods subject to the regulation were extended by roughly six months”.

Heritage argued that this was the incorrect interpretation of Reg. 73/20; however, the court noted that Heritage had failed to articulate why this was incorrect, other than to suggest that the revocation of the regulation effectively revoked any benefit it otherwise may have conferred. This was, clearly, not accepted by the court. Had an alternative opposing argument been advanced that acknowledged the suspension of limitation periods during the 183 days (i.e. that all limitation periods which would have elapsed during this time expired on the date the regulation was revoked), the outcome on this issue may have been different.

Regardless, Heritage and Always Handy were successful in opposing the plaintiff’s motion to add them to the main action, due to the expiry of the limitation period. As JLL and the municipality did not oppose the plaintiff’s motion, an order was granted to add them as defendants to the main action.

This case serves as an excellent example of the obligations imposed on a plaintiff to exercise diligence and keep their counsel informed of all information of which they become aware. As well, the case, importantly, clarifies that all limitation periods subject to Reg. 73/20 were extended by 183 days.

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The class action arose from an infectious disease outbreak amongst patients receiving epidural injections administered by the defendant anesthesiologist, Dr. James, at the Rothbart Centre for Pain Care between January 1, 2010 and November 30, 2012. The outbreak was subsequently investigated by Toronto Public Health.

Justice Morgan held that there was no evidentiary basis to make a finding that any nurse fell below the standard of care in respect of their infection control practices or the manner in which they assisted Dr. James. Further, with respect to the allegation of a failure to report, Justice Morgan held that Dr. James could not offload his own professional responsibilities by accusing nurses, who assisted him in accordance with standard procedures and with whose performance and IPAC he consistently expressed satisfied, of failing to notice that he himself did not meet the standards expected of a doctor.

Overall, Justice Morgan found that the evidence against the nurses was “remarkably thin” and which amounted to “next to nothing”. As such, there was no sustainable legal claim against any of the nurses.

Justice Morgan however did find a breach of the standard of care by Dr. James for failing to use aseptic technique for each epidural procedure and also for failing to report, investigate and remediate all known infections to his patients.

Of particular note is the discussion on causation, which involved a “novel” approach in the context of collective claims. Plaintiff’s counsel took the position that in fulfilling the burden of proof there was no need for the plaintiff to present scientific evidence of the precise way in which the negligence of Dr. James contributed to those injuries. Instead, the question was more of a practical one in which inferences may be drawn, including from circumstantial evidence. In this case, Justice Morgan held that an inference could be drawn because the evidence of causation, while circumstantial, was overwhelming. The evidence demonstrated that the risk ratio of Dr. James’ epidural injections was increased substantially, thus presumptively proving causation for Class Members (subject, of course, to any evidence which might emerge in an individual trial rebutting this presumption).

Lastly, Justice Morgan found this case to be one which required the imposition of punitive damages. Dr. James had an obligation to report, investigate, and remediate these infections. His failure to do so amounted to a marked departure of a person in his position. While the exact quantification of damages will be determined during individual trials, a clear message of deterrence was vocalized for the medical profession as a whole.

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By Nicole A. McAuley

On April 27, 2021, the Ontario Superior Court of Justice released its first decision interpreting the Infectious Disease Emergency Leave Regulation O Reg 228/20 (“IDEL Regulation”) under the Employment Standards Act, 2000, SO 2000 c 41 (“ESA”). Therein, Justice D. Broad determined that employees who were temporarily laid-off because of the COVID-19 pandemic can be successful in constructive dismissal claims at common law, despite the IDEL Regulation.

Early on in the pandemic, there were a large volume of temporary lay-offs by employers who do not typically utilize lay-offs. Pre-pandemic, the case law in this area was well established: where an employment agreement does not contain an enforceable provision allowing for a temporary lay-off, a laid-off employee is deemed to have been constructively dismissed. As many employers had not taken such actions previously, their employment agreements did not contain lay-off provisions. While most of these lay-offs were done out of necessity as a result of the employers’ financial hardship, it was unclear how they would be treated by the courts going forward.

In an attempt to protect employers from constructive dismissal claims in an already precarious time, the province enacted the IDEL Regulation under the ESA.  While  employers could not be sure how the IDEL Regulation would be applied in future legal actions, it was hoped that, given the economic implications of the pandemic, the IDEL Regulation would shield employers from such actions. Based on this first decision, these efforts do not appear to have been successful thus far.

Coutinho v. Ocular Health Centre Ltd. 2021 ONSC 3076

The defendant in this matter operated ophthalmic clinics in Cambridge and Kitchener, Ontario. The plaintiff was employed as the office manager of the Cambridge clinic. In April 2020, a commercial dispute between the defendant’s principals and doctors led to the clinic shutting down. The dispute included allegations that the clinic staff and its doctors had failed to comply with social distancing procedures, among other things.

The plaintiff arrived at work on May 1, 2020 to find the locks had been changed. She was advised that the office was closed, but she would be paid. On May 29, 2020, she received a letter from a principal of the defendant informing her that she had been placed on a temporary lay-off and would no longer receive a salary.

The plaintiff issued a Statement of Claim on June 1, 2020 alleging constructive dismissal. Therein, the plaintiff took the position that nothing in the ESA or its regulations eliminated her common law right to pursue a civil claim for constructive dismissal. She argued that the existing case law on lay-offs should prevail.

The defendant took the position that the plaintiff’s hours of work were temporarily reduced for reasons related to COVID-19. She was therefore deemed to be on Infectious Disease Emergency Leave, as contemplated by the IDEL Regulation. Pursuant to the IDEL Regulation, the temporary reduction of the plaintiff’s hours did not constitute a constructive dismissal and therefore the plaintiff had no cause of action.

The defendant moved for summary judgment on this basis. It argued that given the severity of the impact of COVID-19, the IDEL Regulation should be interpreted to apply to constructive dismissal pursuant to the ESA as well as at common law.

Unfortunately for employers, Justice Broad found that the IDEL Regulation did not affect the plaintiff’s right to pursue a claim for constructive dismissal at common law, and dismissed the summary judgment motion. The starting point for Justice Broad’s analysis was section 8(1) of the ESA, which provides:

Subject to section 97, no civil remedy of an employee against his or her employer is affected by this Act.

Section 97 had no application to the case at hand. Relying upon section 8(1), the Court found that the IDEL Regulation could not be interpreted to remove an employee’s right to pursue a common law action for constructive dismissal.

The decision also highlighted the Ministry of Labour, Training and Skills Development’s document titled “Your Guide to the Employment Standards Act: Temporary Changes to the ESA Rules”. Therein, it stated, amongst other things:

These rules affect only what constitutes a constructive dismissal under the ESA. These rules do not address what constitutes a constructive dismissal at common law.

Justice Broad found that the guide was helpful to understand the legislative intent of the IDEL Regulation as it relates to constructive dismissal. The Court relied upon evidence of this intention in coming to its decision.

The decision did not address whether the common law on constructive dismissal and lay-offs needs to be updated to reflect the unique circumstances of the global pandemic. It is not clear, based on the decision, whether extensive arguments to this effect were advanced by the employer in this case. It remains unclear, if such arguments were made in future actions, whether the Court would support such changes. Understandably, that is certainly the hope of many employers.

It is likely there will be many more decisions to come on this subject, and it is expected that the Ontario Court of Appeal will be asked to weigh in at some point. We will continue to pay close attention to all such developments, as this highly anticipated issue continues to unfold.

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Virtual Arbitration and Uber Technologies Inc. v. Heller

Almost a year after the Supreme Court of Canada affirmed the decision of the Ontario Court of Appeal in Uber Technologies Inc. v. Heller, 2020 SCC 16, to hold a mandatory arbitration clause as unconscionable, courts across Canada have yet to apply the findings of this case to strike an arbitration clause for similar reasons. In the age of virtual legal proceedings, it may be that the reasons articulated in this case for finding an arbitration clause as unconscionable have less applicability.

The respondent in Uber worked as both an Uber and UberEats driver. As a condition to accessing the app, workers had to “agree” to the terms and conditions of a service agreement. That agreement included an arbitration clause which required all disputes be (1) exclusively governed by and construed in accordance with the laws of The Netherlands, excluding its rules on conflict of laws; and (2) submitted first to mandatory mediation and then to arbitration, according to the International Chamber of Commerce (“ICC”) Rules. The place of arbitration was set to be Amsterdam and the financial requirements for accessing this dispute resolution process required at least a $14,500 USD administrative fee.

In holding the clause invalid on grounds of unconscionability, the court stated that the particularly onerous terms of the arbitration clause effectively denied the respondent access to a dispute resolution process especially if the claimant had to travel internationally to have their dispute heard.

Uber was subsequently distinguished in Prairies Tubulars (2015) Inc. v. Canada (Border Services Agency), 2021 FC 36. In this case, Canada Border Services Agency (CBSA) determined that the applicant owed anti-dumping duties on goods imported into Canada per the Special Import Measures Act (“SIMA”). In order to commence an appeal of such charges under SIMA, all outstanding duties must be paid. The applicant challenged these provisions and relied on the case of Uber as the case also involved the imposition of legal obligations that prevented litigants from pursuing their claims.

The Court denied this argument. Though the facts of Prairies Tubulars involved obligations under statute versus the applicability of a contractual agreement, Uber was nonetheless a helpful case as it describes several factors for determining when undue hardship occurs, such as when the cost to pursue a claim is disproportionate to the relief sought or when there is unequal bargaining power between the parties. Where there are two sophisticated parties with full knowledge of their obligations under a statute, for example, there is no undue hardship.

In Uber, it was also held that the arbitration agreement may be unconscionable where the arbitration is fundamentally too costly or otherwise inaccessible. This can occur in cases where the fee is exorbitantly high relative to the claim or the plaintiff cannot reasonably reach the physical location for the arbitration. With increasing use of virtual technology in legal forums during the COVID-19 pandemic, it may be that the barriers to accessing arbitration have decreased. It remains to be seen whether an arbitration clause that mandates arbitration in another country would be as readily struck down by the courts.

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The Impact of Covid-19 on Limitation Periods – Can the Suspension be Applied?

Last March 2020, after Ontario was placed in an emergency lock down due to the global pandemic, the Ontario legislature passed O. Reg. 73/20, which suspended limitation periods effective March 16, 2020, for civil matters, except those under the Construction Act, RSO 1990, c. C30. The suspension was subsequently lifted, and limitation periods began to run again on September 14, 2020. In total, the suspension lasted for 26 weeks.

O. Reg. 73/20, provided that “the temporary suspension period shall not be counted” toward the limitation period. Therefore, it could be interpreted that any limitation period that started running before March 16, 2020, should be extended by exactly 26 weeks.

However, O. Reg. 73/20 has since been revoked causing much confusion amongst the legal community regarding the implication of the suspension and how to apply it, if at all.

In response, the Attorney General for Ontario brought an Application for a declaration that the six-month period of the temporary suspension not be counted in the calculation of the limitation periods. LAWPRO, the lawyers’ insurance company, intervened. To ensure a fulsome view of the issues were before the Court, Justice Myers appointed counsel to act as amicus curiae, or “friend of the court.”  Amicus are counsel who will argue a position to help the court ensure that the issues before the court are fully canvassed in a variety of situations.

On November 16, 2020, Justice Myers heard the Application but declined to intervene. In the decision, which is reported at, Attorney General for Ontario v Persons Unknown, 2020 ONSC 6974, Justice Myers noted,

“A declaration would not have any real-world effect or serve any practical purpose. There is no one here with an interest in the issue brought and no one before the court with an interest in opposing. There are no facts in issue and no real dispute. There are many ways that the Attorney General can avoid the confusion which LAWPRO and others have raised with it. The Government has the ability to give regulatory or legislative responses. It routinely makes regulatory impact statements when it regulates. If the Government would like an opinion of the judicial branch on an interpretation issue, it can refer the question to the Court of Appeal.”

In dismissing the Application, Justice Myers granted deference to the Court of Appeal (in a Reference), the regulatory role of the Attorney General, or the legislative role of the Legislature, as the more appropriate avenue(s) to resolve this issue.

With this decision, the confusion as to whether the suspension period can be applied to limitation periods, remains. Until there is clarification by the legislation or the Court of Appeal in a Reference, it would be prudent to err on the side of caution and abide by the original limitation period, thus ignoring the suspension.

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Past Practices May Be Too Far Removed to Satisfy the Test for Estoppel by Convention

The Ontario Court of Appeal in Grasshopper Solar Corporation v. Independent Electricity System Operator clarified the applicability and effect of estoppel by convention between two sophisticated parties.

The appellants and the respondent entered into Feed in Tariff (FIT) Contracts for the construction of solar facilities. The appellants agreed to achieve commercial operation of the facilities by a specified date but failed to do so. The agreement included a clause indicating that time is of the essence. At issue is whether the respondents properly exercised their rights to terminate the contracts due to delay. The appellants sought to rely on the doctrine of estoppel by convention to support their position that the respondent had waived their right to terminate.

That doctrine, as established in Ryan v. Moore, requires three criteria:

1. The parties’ actions must be based on a shared assumption of fact or law; there must be a manifest representation by statement or conduct creating a mutual assumption;
2. A party must have relied on the assumption resulting in a change of its legal position; and
3. It must be unjust or unfair for one party to resile or depart from the shared assumption. The party seeking to rely on the doctrine must demonstrate that harm will result if no effect is given to the shared assumption.

The Appellate Court upheld the application judge’s decision and concluded that estoppel by convention did not apply. The Court clarified that the requirement of a shared assumption is not one element among three to meet the test, but is rather “the thing that gives rise to the need for equitable relief.” In the absence of a shared assumption, the argument for estoppel by convention fails. The shared assumption may be based on mistake but typically involves existing as opposed to future circumstances. Conclusively, the appellants’ reliance on the respondent’s past practice with other suppliers as the basis for the shared assumption failed to meet the test. Further, in the absence of any finding of shared assumption, it is inappropriate for the court to engage in other elements of the test.

This case not only reinforces the primacy of a shared, unambiguous, unequivocal assumption for the doctrine to apply but also potentially renders reliance on past conduct nugatory in a claim of estoppel by convention. It would seem the significant effect of the doctrine, undermining certainty of contract bargained and agreed between sophisticated commercial parties, may have motivated the court to further constrain the availability of the doctrine even where fairness may be a concern.

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The Ontario Court of Appeal in Lilydale Cooperative Limited v Meyn Canada Inc, 2019 ONCA 761, confirmed that pending decisions about jurisdictional issues will not extend the limitation period. This case follows along the same vein as other rulings that suggest that appeals, settlement discussions and the resolution of ancillary issues do not defer the start of the limitation period.

In this case, the plaintiff commenced a claim in both Alberta and Ontario against the same defendants, Meyn and EMK. Meyn sought to stay the action in Ontario on the grounds that Alberta was the most convenient forum. Ultimately, Meyn’s motion was dismissed and therefore, the Alberta action was discontinued.

Two years and eight months past the issuance of the original claim in Ontario, Meyn and EMK issued third party claims. One of the third party defendants brought a summary judgment motion to dismiss the action for being statute-barred. Meyn argued that it was not “legally appropriate” to commence a third party claim while another resolution process that may resolve the matter was ongoing. Meyn took the position that the forum issue must have been decided as a prerequisite to bringing any other claim; and the resolution of the forum issue would commence the limitation period.

The Court of Appeal disagreed and affirmed the lower court’s decision to grant the summary judgment motion. It was not “legally appropriate” for Meyn to wait for a jurisdictional dispute to be resolved before commencing its third party claim. While the risk of attornment was a legitimate concern, that concern did not affect discoverability of the third party claim or displace the duty to preserve the claim within limitation period. The court found that withholding the third party claim was a strategic decision, and such tactical choices could not serve to delay the start of the limitation period.

The court advised of other procedural routes that could have preserved the limitation period without prejudice to the forum motion, such as alerting the parties of a potential third party claim and seeking indulgence to a stand-still pending its resolution. Alternatively, the defendants could have issued the third party claim with an express reservation of its rights, and then argued at its forum motion that it did so only to preserve the limitation period and therefore has not attorned to Ontario’s jurisdiction.

It is clear through this ruling and so many others before it, that the Limitations Act, 2002, is a judicial lifeline that demands strict compliance, with little deference to technicalities. As soon as a claim is discovered, the clock begins to run. The seasoned litigator must therefore, preserve the claim under all costs.

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The New Tort of Harassment? Not yet.

In the common law system where passed precedents rule the courts, breaking through the law to set your own, is the ultimate legal feat. But, how malleable is the justice system in allowing novel ideas to supersede its predecessor? In Merrifield v. Canada (Attorney General), 2019 ONCA 205, the plaintiff attempted to preserve the Superior Court’s decision to establish, for the first time, the tort of harassment. On appeal, this decision was overturned, with the court deciding that there was no freestanding tort of harassment in Ontario.

In this case, the plaintiff employee brought a claim against the RCMP management for harassment and bullying that caused severe impairments to his reputation, career and mental health over seven years. The strained relationship allegedly began after the plaintiff ran a campaign to be nominated as the Conservative Party’s candidate for Barrie, in the federal election. The plaintiff sought damages for the mental distress he suffered at the hands of the management.

The Superior Court’s Decision

In allowing the action, the trial judge held that the managers’ behaviour towards the plaintiff was egregious enough to warrant damages under the tort of harassment. The trial judge took into account the following, in order to establish entitlement for damages under harassment:

1. Was the conduct of the defendants toward the plaintiff outrageous?
2. Did the defendants intend to cause emotional distress or did they have a reckless disregard for causing the plaintiff to suffer from emotional distress?
3. Did the plaintiff suffer from severe or extreme emotional distress?
4. Was the outrageous conduct of the defendants the actual and proximate cause of the emotional distress?

The Court of Appeal’s Decision

When the RCMP appealed, the court decided that the trial judge erred in establishing a new tort of harassment because no legal authorities supported this tort; and this case was not one “whose facts [cried] out for the creation of a novel legal remedy.” The court held that there were other legal remedies such as tort of intentional infliction of mental suffering (IIMS) to redress the alleged conduct. Interestingly, the court decided that this case did not even meet the threshold for entitlement to damages under IIMS.

In affirming that a novel tort was unnecessary, the court reiterated a quote by McLachlin J, that: “common law change is evolutionary in nature: it proceeds slowly and incrementally rather than quickly and dramatically.” However, despite the resistance to recognize harassment as a tort, the court did not dispense with the possibility altogether, but instead suggested that this was not the appropriate case to inaugurate the change.

This case has at the very least, continued the conversation in Jones v. Tsige, 2012 ONCA 32 (Ont. C.A.), which established the tort of intrusion upon seclusion. As for harassment as a standalone tort – we’re not there yet. The law is quick to bind and slow to change. The legal community eagerly anticipates the breakthrough case that will establish harassment as a new tort, but for now, we continue to rely on human rights and employment standards legislation to protect against workplace harassment.

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