Tort of Harassment

Surdyka v Imbrogno, 2018 CanLII 44838 (ON SCSM)

23. In par. 15, the court in Savino, remarked that there is debate as to whether or not the tort of harassment has been established as a civil cause of action in Canada. In par. 16, the court referenced the BCSC case of Mainland Sawmills Limited v. IWA-Canada Local 1-3567 Society, 2006 BCSC 5725 (Sawmills), as a case in which a Canadian court considered the elements of the tort of harassment. In that case the court did not find it necessary to determine the status of the tort as the evidence fell short of proving harassment. However, the elements of the tort, as laid out by the court, have been used in subsequent Ontario cases.

24. In Sawmills the court, in par. 17, set out the four elements of the tort of harassment:

i) outrageous conduct by the defendant;

ii) the defendant's intention of causing or reckless disregard of causing emotional distress;

iii) the plaintiff's suffering of severe or extreme emotional distress; and

iv) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.

25. In the Savino case the motion to strike out the plaintiff's claim or parts thereof, was denied with the court noting at par. 15 that, "While it [the tort of harassment] is not largely accepted, the door does not appear to be entirely closed on the possibility of this tort's existence."

26. Following the Savino case, the Ontario Superior Court of Justice has acknowledged the existence of a civil tort of harassment as an independent cause of action in a few other cases. In McHale v. Ontario, 2014 ONSC 5179 (McHale), the court had before it a motion to strike a portion of a statement of claim pertaining to alleged civil harassment. The court, in pars. 42 to 44, struck out that portion of the claim as the plaintiff had not set out, with sufficient particularity, the elements of the tort. The court, however, accepted the tort of harassment as an independent cause of action and reiterated the four elements of the test for the tort as set out in Sawmills.

27. In the case of McIntomney v. Evangelista Estate, 2015 ONSC 1419 (McIntomney), an action for sexual battery and harassment, the court awarded the plaintiff $5000 for damages for the tort of harassment and accepted the four element test set out in Sawmills and Hale. Also in 2015, in John v. Cusack, 2015 ONSC 5004 (John), the court considered the tort on a motion for summary judgment. The court, at par. 40, assumed the existence of the tort of harassment for the purpose of the motion but found that the claim in that case was frivolous and vexatious.

28. The most recent consideration of the tort of harassment by the court was in the case of Merrifield v. The Attorney General, 2017, ONSC 1333 (Merrifield). In Merrifield, the plaintiff, a police officer, brought an action against his superior officers and the force, alleging harassment, breach of contract, and intentional infliction of mental suffering. Citing Savino, McHale, McIntomney, and John, the court, at pars. 700-718, recognized the tort of civil harassment. The court adopted the four element test set out in the earlier cases and found in the officer's favour awarding general and special damages totaling $141,000.

29. The Merrifield decision is currently under appeal. The other cases noted here were not appealed. This court, therefore, has proceeded on the basis that there is a civil tort of harassment in Ontario and as such shall proceed to apply the four part test first stated in Sawmills, and applied in the subsequently cited cases, to determine if the plaintiff has met the elements of the test.

APPLICATION OF THE TEST FOR THE TORT OF HARASSMENT

30. As stated in Sawmills the four elements for the test for the tort of harassment are as follows:

i) outrageous conduct by the defendant;

ii) the defendant's intention of causing or reckless disregard of causing emotional distress;

iii) the plaintiff's suffering of severe or extreme emotional distress; and

iv) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.

In order to find that the tort has been committed the plaintiff must prove to the court, on a balance of probabilities, that all four elements of the test have been met.