Canadian HR Reporter

CANADIAN HR REPORTER MAY 2019 12 NEWS inform other areas of the law and other causes of action, said Si- mon Reis, an associate at Blaney McMurtry in Toronto. "It's in the Occupational (Health and) Safety Act; it's in the human rights code. is is just about whether there is a freestanding common law tort of harassment." However, the law hasn't yet changed in this area so the ob- ligations that employers had be- fore the Merrifield decision are still the same — both in tort and under statutory provisions, said Amanda Bertucci, an associate at Goodmans in Toronto. "Under the Occupationa l Health and Safety Act, there are requirements about procedures that have to be put into place, the way that investigations are conducted. So there are statu- tory obligations that employers have to be aware of and abide by, regardless of the common law tort of harassment — whether it's recognized or not." Creating a new tort In making its decision, the ap- peal court first looked at what was required to recognize or es- tablish an new tort. "Common law change is evo- lutionary in nature: It proceeds slowly and incrementally, rather than quickly and dramatically," said the appeal court, citing the 1989 decision Watkins v. Olafson. The Court of Appeal really made clear that it's not the role of the court to be determining that a new tort exists or creating a new tort, said Talbot. "Rather, it's the role of court to recognize, over a period of time, that a tort may now exist. So it sounds like a fine distinction, but it does make a difference." Courts are often reluctant to tread into the territory of what would be the legislature's more defined roles, said Bertucci. "e courts are hesitant to cre- ate new torts or create new com- mon law provisions when there isn't legislative grounding to do that already, and the Court of Appeal found there wasn't. So I don't think it's entirely surprising for the court to delineate what they feel their jurisdiction is as compared to the legislature." e appeal court said really the court's job "is more to recog- nize things that are already per- colating and already in existence, and not to just create things from scratch, so to speak," she said. And in looking at the 2012 Jones v. Tsige, which introduced the intrusion upon seclusion tort, the appeal court said it was grounded in an emerging acceptance of claims for breach of privacy. e judge there carefully reviewed On- tario and Canadian case law, pro- vincial legislation, academic schol- arship, tort law in other countries along with social change. "is is not a case whose facts cry out for the creation of a novel legal remedy, as in Tsige," said the appeal court. "In this case, there are legal remedies available to re- dress conduct that is alleged to constitute harassment." The legislature has already occupied some of the field with respect to harassment, as seen with the Occupational Health and Safety Act, and the human rights code, said Reis. "The Court of Appeal has sounded a warning to some of the lower courts that we need to be careful in recognizing new bases of civil liability and that the common law needs to develop in incremental steps with due re- gard for whether it's appropriate to recognize a new cause of ac- tion," he said. While the appeal court said there was not sufficient prec- edential authority, said Reis, "I think what they were getting at is, right now, there's no compel- ling reason to recognize this. e fact that the elements of this pro- posed tort of harassment were so similar to the elements of the pre-existing, well-established tort of intentional infliction of emotional suffering (IIMS), I think that that was a factor." Mental suffering e appeal court looked at the tort of IIMS and said it is well- established in Ontario and can be used as a basis for claiming damages for mental suffering in the employment context: "Whereas IIMS requires fla- grant and outrageous conduct, the proposed harassment tort would require only outrageous conduct. More significant, IIMS is an intentional tort, requiring an intention to cause the kind of harm that occurred or knowl- edge that it was almost certain to occur." If you look at the elements of the tort of harassment, it does seem to set a lower bar than what IIMS would require, said Reis. "Conduct for harassment just needs to be outrageous, not also flagrant. And the proposed tort of harassment would require that the plaintiff suffered severe or extreme emotional distress and not a visible and provable illness." Harassment would have been more of a negligence-based tort, whereas IIMS has an ele- ment of intentionality to it, said Bertucci. "The threshold's a little bit higher because the three elements are that there has to be conduct that was flagrant and outrageous, calculated to produce harm, and which results in visible and prov- able illness to reach the threshold for IIMS — that's a little bit higher than what the proposed tort of harassment would have looked like." e Court of Appeal noted the test set out by the lower court for harassment was really not sub- stantially different from the test for IIMS, said Talbot. "In other words, that there is under our existing law and under the existing head of damage, of intentional infliction of mental suffering, recourse for employees or others who want to look to the court." While Vallee looked at four cases in her 2017 decision, she erred in doing so, said the appeal court: "Taken as a whole, these cases confirm neither the exis- tence of the tort, nor its elements." In the end, the appeal court said it did not "foreclose the de- velopment of a properly conceived tort of harassment that might ap- ply in appropriate contexts" but Merrifield "has presented no compelling reason to recognize a new tort." Establishment of new tort lowered threshold HARASSMENT < pg. 1 Brown-eyes blue? Your genes determine a whole lot more than just your eye colour We're using pharmacogenetic testing to help disability claimants discover which medications will get them back to health faster and more effectively. It's part of our proactive approach to helping employers bring better health solutions to their employees. Ready for a healthy change in benefits? TM The Blue Cross symbol and name are registered trademarks of the Canadian Association of Blue Cross Plans, used under licence by Medavie Blue Cross, an independent licensee of the Canadian Association of Blue Cross Plans. Health and Wellness | Drug Management | Disability medaviebc.ca/healthychange "In this case, there are legal remedies available to redress conduct that is alleged to constitute harassment."

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