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Harassment

. Merrifield v. Canada (Attorney General)

In Merrifield v. Canada (Attorney General) (Ont CA, 2019) the Court of Appeal considers, but decides against, a new tort of harassment. The case is very interesting for it's consideration of what it takes for the common law to develop:
I. THE TORT OF HARASSMENT

[19] The decision under appeal is the first case in which a Canadian appellate court has been required to determine whether a common law tort of harassment exists. What is required in order for a new tort to be recognized or established? Neither party canvassed this issue, yet it is key to the resolution of this appeal. Accordingly, it is helpful to begin with a brief consideration of the nature of common law change, before considering whether a tort of harassment should be recognized at this time.

The nature of common law change

[20] Common law change is evolutionary in nature: it proceeds slowly and incrementally rather than quickly and dramatically, as McLachlin J. explained in Watkins v. Olafson, 1989 CanLII 36 (SCC), [1989] 2 S.C.R. 750, at p. 760:
Generally speaking, the judiciary is bound to apply the rules of law found in the legislation and in the precedents. Over time, the law in any given area may change; but the process of change is a slow and incremental one, based largely on the mechanism of extending an existing principle to new circumstances. While it may be that some judges are more activist than others, the courts have generally declined to introduce major and far-reaching changes in the rules hitherto accepted as governing the situation before them.
[21] As she went on to explain at pp. 760-761, courts may not be in the best position to address problems in the law; significant change may best be left to the legislature:
There are sound reasons supporting this judicial reluctance to dramatically recast established rules of law. The court may not be in the best position to assess the deficiencies of the existing law, much less problems which may be associated with the changes it might make. The court has before it a single case; major changes in the law should be predicated on a wider view of how the rule will operate in the broad generality of cases. Moreover, the court may not be in a position to appreciate fully the economic and policy issues underlying the choice it is asked to make. Major changes to the law often involve devising subsidiary rules and procedures relevant to their implementation, a task which is better accomplished through consultation between courts and practitioners than by judicial decree. Finally, and perhaps most importantly, there is the long-established principle that in a constitutional democracy it is the legislature, as the elected branch of government, which should assume the major responsibility for law reform.
[22] These wise words of caution have been reiterated by the Supreme Court in a variety of contexts including R. v. Salituro, 1991 CanLII 17 (SCC), [1991] 3 S.C.R. 654, and R. v. Mann, 2004 SCC 52 (CanLII), [2004] 3 S.C.R. 59. The same idea is seen in English law: see e.g. Launchbury v. Morgans, [1972] UKHL 5, [1973] A.C. 127.

[23] Thus, when the Supreme Court created a duty of honest contractual performance in Bhasin v. Hrynew, 2014 SCC 71 (CanLII), [2014] 3 S.C.R. 494, it did so on the basis that good faith contractual performance already existed in Canadian common law as a general organizing principle that underpins and informs existing common law rules. Creation of the new common law duty was justified on the basis that it was an incremental step that followed from the implications of the general organizing principle, a step that responded to societal needs and vindicated the reasonable expectations of commercial parties without precipitating unintended effects.

Common law change in Ontario

[24] The importance of incremental development of the common law was discussed in Jones v. Tsige, 2012 ONCA 32 (CanLII), 108 O.R. (3d) 241, in which this court recognized the existence of a tort of intrusion upon seclusion.

[25] Far from being created from whole cloth, the intrusion upon seclusion tort was grounded in what Sharpe J.A. identified as an emerging acceptance of claims for breach of privacy. He carefully reviewed Ontario and Canadian case law, in which he discerned both supportive dicta and a refusal to reject the existence of the tort, and provincial legislation that established a right to privacy while not foreclosing common law development. He also considered academic scholarship, much of which supported the existence of a right to privacy. He drew upon American tort law, which recognizes a right to privacy, as well as the law of the United Kingdom, Australia, and New Zealand. He also noted societal change – in particular, technological developments that pose a threat to personal privacy – and the impetus for reform that it created. “[M]ost importantly,” he said, “we are presented in this case with facts that cry out for a remedy”: at para. 69.

[26] Ultimately, Sharpe J.A.’s conclusion was couched in terms of confirming the existence of the tort rather than simply creating it. As he put it, at para. 65:

In my view, it is appropriate for this court to confirm the existence of a right of action for intrusion upon seclusion. Recognition of such a cause of action would amount to an incremental step that is consistent with the role of this court to develop the common law in a manner consistent with the changing needs of society.

Authority does not support the recognition of a tort of harassment

[27] The trial judge in this case relied on four trial-level decisions proffered by Merrifield as supporting the existence of the tort and establishing its elements: Mainland Sawmills Ltd. et al v. IWA-Canada et al, 2006 BCSC 1195 (CanLII), 41 C.C.L.T. (3d) 52; Savino v. Shelestowsky, 2013 ONSC 4394 (CanLII), 4 C.C.L.T. (4th) 94; McHale v. Ontario, 2014 ONSC 5179; and P.M. v. Evangelista, 2015 ONSC 1419 (CanLII).

[28] She erred in doing so. Taken as a whole, these cases confirm neither the existence of the tort nor its elements.

[29] Mainland Sawmills is the key case in the analysis. It underlies all of the subsequent Ontario trial decisions – this, despite the fact that it is a British Columbia trial level authority in which the court did no more than assume, for purposes of dealing with an application seeking to have particular claims dismissed, that the tort exists. Far from confirming the existence of the tort, the application judge in Mainland Sawmills specifically concluded that the law is unclear.

[30] As for the elements of the tort, these too were assumed by the application judge in Mainland Sawmills based on the plaintiffs’ submission – a submission that was based on American caselaw arising out of the tort of intentional infliction of emotional distress. In short, Mainland Sawmills is not authority for either the existence of the tort of harassment or the elements of such a tort.

[31] Nevertheless, Mainland Sawmills has been cited and relied on in several subsequent cases in Ontario in which the tort of harassment has been asserted.

[32] In Savino, the motion judge does no more than find that although a tort of harassment is “not largely accepted, the door does not appear to be entirely closed on the possibility of this tort’s existence”: at para. 15. The court cites Mainland Sawmills as one of the few cases in which the elements of the tort are set out.

[33] McHale appears to assume the existence of the tort and cites two cases, Lynch v. Westario Power Inc., [2009] O.J. No. 2927 (S.C.), and Mainland Sawmills, for the elements of the tort, only to conclude that the tort was not pleaded with sufficient particularity. Lynch specifically states that the existence of the tort of harassment is unclear and, like McHale, finds that the tort was not pleaded with sufficient particularity in accordance with Mainland Sawmills in any event.

[34] P.M. describes harassment as a “still-developing tort” and cites Savino and Lynch for the elements of the tort. P.M. is the only case cited by the respondent in which damages were awarded for harassment ($5,000), but the defendant in that case was the administrator of the estate of the tortfeasor and did not lead evidence.

[35] The trial judge concluded that the law of harassment has evolved since 2011, citing McHale, P.M., and John v. Cusack, 2015 ONSC 5004 (CanLII), in support. The motion judge in John acknowledges that the existence of the tort is a “live legal issue”, but assumes its existence for purposes of a summary judgment motion, ultimately dismissing the claim as frivolous and vexatious.

[36] This is the extent of the authority cited in support of the existence of the tort. In sum, these cases assume rather than establish the existence of the tort. They are not authority for recognizing the existence of a tort of harassment in Ontario, still less for establishing either a new tort or its requisite elements.

There is no other basis to recognize a new tort

[37] Given that authority does not support the existence of a tort of harassment, should this court nevertheless recognize such a new tort?

[38] To pose the question in this way is to suggest that the recognition of new torts is, in essence, a matter of judicial discretion – that the court can create a new tort anytime it considers it appropriate to do so. But that is not how the common law works, nor is it the way the common law should work.

[39] At the outset, it is important to recognize that this is not a case like Tsige, which, as we have said, is best understood as a culmination of a number of related legal developments. As we have explained, current Canadian legal authority does not support the recognition of a tort of harassment.

[40] We were not provided with any foreign judicial authority that would support the recognition of a new tort. Nor were we provided with any academic authority or compelling policy rationale for recognizing a new tort and its requisite elements.

[41] This is not a case whose facts cry out for the creation of a novel legal remedy, as in Tsige. That case concerned a highly significant intrusion into the plaintiff’s personal information. The defendant, who was in a relationship with the plaintiff’s former husband, used her workplace computer to gain access to the plaintiff’s banking records and personal information over a period of several years – actions the court found to be deliberate, prolonged, and shocking. Discipline imposed on the defendant by her employer did not redress the wrong done to the plaintiff. In these circumstances, as Sharpe J.A. put it, “[T]he law of this province would be sadly deficient if we were required to send [the plaintiff] away without a legal remedy.”

[42] That is not this case. In this case, there are legal remedies available to redress conduct that is alleged to constitute harassment. The tort of IIMS is one of these remedies, and it is discussed below.

[43] In summary, the case for recognizing the proposed tort of harassment has not been made. On the contrary, as we will explain, there are good reasons opposing the recognition of the proposed tort at this time.
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