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Can employees sue for harassment?

As of 2018, employees have the option of seeking chronic mental stress benefits under section 13(5) of the Workplace Safety and Insurance Act (“WSIA”). In a recent case, the Divisional Court has upheld a decision of the Grievance Settlement Board’s finding that it did not have jurisdiction to award damages as a remedy for grievances alleging workplace harassment as the alleged injuries would be compensable under the WSIA. This means it may be even harder for employees to sue in the civil forum for mental stress arising from workplace harassment because their claims may be compensable under the WSIA. On the flip side, given the Divisional Court’s decision, employers who are defending claims for mental stress outside the workers’ compensation forum, may make the argument that part or whole of a case should be dismissed on the basis that these claims ought to have been brought under the WSIA.

In addition, the Ontario Court of Appeal recently found in Merrifield v. The Attorney General that there is no tort of harassment. A tort is a civil wrong which could lead to liability for the wrongdoer.

In 2017, the Superior Court had previously found that employees could sue for harassment. In the Merrifield case, the court found that over a seven-year period, Mr. Merrifield, an RCMP officer, was harassed by his supervisors causing him severe mental distress, damaging his reputation and impairing his career advancement. He was awarded $100,000 in damages, along with $41,000 for missed promotional opportunities. Earlier this month, the Court of Appeal overturned that decision.

The Court of Appeal found that existing case law does not recognize harassment as a civil wrong. More importantly, the court noted there is no basis for recognizing a new tort of harassment because the facts of the case were not compelling enough to support the creation of a novel legal remedy.

While the Court of Appeal noted that Mr. Merrifield did not provide sufficient authority to warrant establishing a new tort of harassment, the court did not rule out the possibility that other cases may provide grounds for recognizing the tort of harassment.

Even though harassment is not a recognized civil wrong, there are existing civil remedies that address harassing conduct. For example, the person being harassed may claim intentional infliction of nervous shock/mental distress, which requires the person to prove that the outrageous conduct was calculated to produce harm and resulted in a visible and provable illness. In the employment law context, other legal remedies such as constructive dismissal claims, human rights applications, or internal complaints are also available to employees facing harassment.

Whether or not employees will be able to sue for infliction of mental suffering and also file a claim for chronic mental stress benefits remains to be seen.

To read the Ontario Court of Appeal’s or the Divisional Court’s decision in full, see below: