Harrassment - Re: Meaning (RTA)

Merrifield v The Attorney General, 2017 ONSC 1333 (CanLII)

In Ontario, is harassment recognized as a tort upon which a civil cause of action may be based?

[700] The plaintiff and the defendant disagree regarding whether the tort of harassment has been recognized as a cause of action. The plaintiff submits that the tort of harassment does exist and is recognized as a cause of action. The plaintiff relies on several cases to support his position.

[701] Mainland Sawmills Ltd. v. IWA-Canada, Local 1-3567 Society, 2006 BCSC 1195, 41 C.C.L.T. (3d) 52, concerned a trespass to property. A number of union members came to the plaintiff’s property and forcibly shut down the sawmill operations. Property damage resulted and some employees were assaulted. The plaintiffs made a claim for harassment. The court began its analysis by assuming that the tort of harassment does exist or should exist in Canada. It stated at para. 17 that the elements of the tort of harassment are:

(a) Outrageous conduct by the defendant;

(b) Intention on the part of the defendant to cause emotional distress or the defendant’s reckless disregard for causing emotional distress;

(c) The plaintiff’s suffering severe or extreme emotional distress; and,

(d) The defendant’s outrageous conduct to be the actual and proximate cause of the emotional distress.

[702] Regarding the claim, the court found that the plaintiffs had not proved the third element of the tort.

[718] Based on the jurisprudence before me, I am satisfied that the tort of harassment does exist, that it has been recognized as a cause of action in Ontario and that its elements are those set out in McHale and McIntomney.

Test for Harassment

[719] The test for harassment is set out in McHale and McIntomney above. In this case, there are four questions to be answered.

(a) Was the conduct of the defendants toward Mr. Merrifield outrageous?

(b) Did the defendants intend to cause emotional stress or did they have a reckless disregard for causing Mr. Merrifield to suffer from emotional stress?

(c) Did Mr. Merrifield suffer from severe or extreme emotional distress?

(d) Was the outrageous conduct of the defendants the actual and proximate cause of the emotional distress?

What constitutes outrageous behaviour in the context of harassment?

[720] The Canadian Oxford Dictionary defines outrageous as follows: 1. Deeply shocking and unacceptable; 2. grossly cruel; 3. immoral, offensive; and 4. highly unusual or unconventional.[vii]

[721] Of the four harassment cases set out above, McIntomney is the only trial decision. The court held that the defendant’s conduct constituted sexual battery and found that the plaintiff had proved all the elements of the tort, including outrageous behaviour. The plaintiff was awarded damages.

[722] The tort of intentional infliction of mental suffering has some overlap with the tort of harassment. It requires that a plaintiff prove that the defendant’s conduct was outrageous and also flagrant. In Boucher v. Wal-Mart Canada Corp., 2014 ONCA 419, 120 O.R. (3d) 431, para 50, the court found that the plaintiff’s supervisor, “… belittled, humiliated and demeaned [Boucher] the plaintiff continuously and unrelentingly, often in front of co-workers, for nearly six months.” This constituted flagrant and outrageous conduct.

TST-70689-16 (Re), 2016 CanLII 52988 (ON LTB)

29. Section 23 of the Act states: “A landlord shall not harass, obstruct, coerce, threaten or interfere with a tenant.”

30. Harassment is not defined in the Act but it can be reasonably be defined as a course of actions or conduct, including words, or gestures which tend to annoy or alarm. It is conduct which a reasonable person knows, or ought to know would be unwelcome.

31. Threatening is generally considered to be actions, gestures or words which can be expressed or implied which cause a person to fear for their health or safety, or for the health and safety of those close to them. Threats are often an expression of intent to cause harm or affect a person or their situation in a negative way. Threats can be overt and direct, or they can be veiled or implied.

TET-63792-15 (Re), 2015 CanLII 94965 (ON LTB)

13. The Landlord is a professional running a business. At a minimum he should know and understand the basic concept that tenancies can only be terminated in accordance with the Act.

14. He should also know that the kind of behaviour on the part of a landlord that is described above is simply not permitted under the Act but whether or not the Landlord had actual knowledge is irrelevant. Section 23 says a landlord shall not harass, obstruct, coerce, threaten or interfere with a tenant. The text messages, the Landlord’s attempts to force the Tenant to move out without filing an application with the Board, the veiled threats to the Tenant, and the refusal to accept rent are all part of a course of conduct that a reasonable landlord ought to know would be unwelcome to any reasonable tenant. This is particular true given that the entirety of the Landlord’s conduct was aimed at forcing the Tenant to abandon the tenancy without any of the procedural protections he is entitled to under the Act.

15. As a result I am satisfied that the Landlord’s behaviour in this regard breached s. 23 of the Act.

22. As stated above, abatement is tied to the amount of the rent. Here the monthly rent is $1,100.00. It seems to me that given the nature of the behaviour complained of, the length of time it went on, the impact it had on the Tenant, and my knowledge of similar like cases before the Board, a reasonable abatement of the rent would be $1,000.00. An order shall issue accordingly.