A recent decision from the Ontario Superior Court of Justice found that the tort of harassment, including workplace harassment, can be the basis for an independent cause of action in a civil proceeding. The Court stated that the following elements must be met:
- Was the conduct of the defendants toward the plaintiff outrageous?
- Did the defendants intend to cause emotional stress or did they have a reckless disregard for causing the plaintiff to suffer from emotional stress?
- Did the plaintiff suffer from severe or extreme emotional distress?
- Was the outrageous conduct of the defendants the actual or proximate cause of the emotional distress?
The Court indicated that a plaintiff is not required to prove that he or she has a visible and provable illness. However, a plaintiff is required to prove that he or she suffered “severe or extreme emotional distress”.
While it remains to be seen how difficult it will be to make out the test for the tort of harassment and/or if employees will start claiming the tort of harassment in civil proceedings, the recognition of this tort opens the door to additional potential damages for employers for failing to protect employees from harassment in accordance with statutory obligations, including the Occupational Health and Safety Act, and the Human Rights Code.