I am often contacted by individuals who tell me that they have been subjected to harassment. In some cases, the individual did not really have much of a case because the conduct complained of was not severe or harsh enough to cause actual emotional distress. It may seem insensitive, but unfortunately, the law will not compensate an individual because he perceived someone being mean to him.
Until a few years ago, a claim for harassment had to be framed as a claim for infliction of mental distress in order to be successful. However, earlier this year, the decision of the Ontario Superior Court of Justice in Merrifield v. Canada (Attorney General) formally recognized the tort of harassment as a separate and distinct cause of action in Ontario.
Tracing the development of the case law since 2011, the court reiterated the following requirements for a claim of harassment at paragraph 719:
- Was the conduct of the defendant towards the plaintiff outrageous? In other words, the acts of harassment must be flagrant, wanton, extreme and insensitive.
- Did the defendant intend to cause emotional stress or did they have a reckless disregard for causing the plaintiff to suffer emotional harm? The impact of the conduct must be known by the plaintiff to be substantially certain to follow.
- Did the plaintiff suffer severe or extreme emotional distress? This does not require proof of a visible and provable illness, but rather emotional distress of such substantial quantity or enduring quality that no reasonable person in a civilized society should be expected to endure it.
- Was the outrageous conduct of the defendant the actual and proximate cause of the emotional distress?
Interestingly, at paragraph 697, the court stated that to prove severe emotional distress, the plaintiff is not required to provide medical evidence. Although a clinical report setting out a DSM-V diagnosis of a disorder can be persuasive and powerful, it is not necessarily required to prove a claim of harassment.
The damages that may be awarded for this kind of claim can be substantial. In this case, the court awarded general damages for mental distress in the amount of $100,000.00 – despite the paucity of medical evidence. This is consistent with the damages awarded in Boucher v. Wal-mart Canada Corp., a case that I wrote about here a few years ago.
As I mentioned above, the law will not compensate an individual because he perceived someone being mean to him. However, this case serves as a cautionary tale for those who feel that they can do or say whatever they want, without regard for those to whom direct such acts.
This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further
For many people, when they think of civil litigation and going to court, they think of suing for damages or monetary compensation. However, damages are just one of several forms of relief that a court can order.
Injunctions are another form of relief that can be sought in a civil litigation case. Simply put, an injunction is a type of court order that requires the subject of the court order to either do or refrain from doing something specific. For instance, an employer can seek an injunction requiring a former employee to comply with a non-solicitation agreement and refrain from contacting the employer’s customers.
In order to succeed on an application for an injunction, there are 3 criteria that must be met:
- There must be a serious issue to be tried;
- The party seeking the injunction would incur irreparable harm if the injunction is not granted; and
- The balance of convenience, taking into account the public interest, favours granting the injunction.
Recently, the Toronto Transit Commission was in the news over an injunction sought by the Amalgamated Transit Union to prevent the TTC from implementing its random drug and alcohol testing policy called the Fitness for Duty Policy. A link to the court’s decision can be found here.
On the first part of the test, the court was satisfied that there was a serious issue to be determined at an arbitration hearing between the TTC and the union – specifically, whether or not there was a demonstrated problem with alcohol and drugs in the workplace such that the policy should remain in place.
On the second part of the test, the court had to consider whether or not the Fitness for Duty Policy violated an employee’s reasonable expectation of privacy as protected by the guarantee of security from unreasonable search and seizure under the Canadian Charter of Rights and Freedoms. The court was not persuaded that TTC employees would suffer irreparable harm if the injunction was not granted. Part of the court’s reasoning, found at paragraph 68 of the decision, was that, if the injunction was not granted and the Duty for Fitness Policy was not upheld at arbitration, an employee could sue for damages for invasion of privacy. My article on the tort of invasion of privacy or intrusion upon seclusion can be found here.
At paragraph 153 of the decision, the court concluded that random testing would “increase the likelihood that an employee in a safety critical position, who is prone to using drugs or alcohol too close in time to coming to work, will either be ultimately detected when the test result is known or deterred by the prospect of being randomly tested.” The desirable outcome would be an increase in public safety.
As a result, the court denied the union’s application for the injunction. As you may have heard or read, several TTC employees have since been caught by the Duty for Fitness Policy.
An injunction, sought at an early stage of a lawsuit, can provide a strategic advantage in civil litigation. It is important to seek legal advice from a knowledgeable and experienced litigator when dealing with these kinds of matters.
This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.