In Ontario, you cannot sue another individual or company under the tort of “harassment” (which the Ontario Court of Appeal has held does not exist). If the harassment is not connected to a human rights protected ground, individuals who wish to sue for “harassment” in civil court must do so under “intentional infliction of mental suffering”. Plaintiffs, however, should note this tort includes a difficult test to meet.
What Constitutes Intentional Infliction of Mental Suffering?
The three-part test used to establish intentional infliction of mental suffering consists of i) flagrant or outrageous conduct, ii) with the intention of causing harm, iii) which results in a visible or provable illness for the plaintiff.
Flagrant and outrageous conduct consists of extreme and serious conduct. This may include verbal abuse or conduct which otherwise belittles, torments, or humiliates the recipient. This branch of the test is objective—it is not enough that the plaintiff believes the conduct is extreme, a reasonable person must view the conduct as serious.
The second part of the test—whether the conduct was calculated to produce harm—is subjective and can be inferred by the circumstances of a defendant’s conduct. In short, there must be an element of intent to hurt the plaintiff—mere negligence causing harm is insufficient. The defendant must know its conduct would cause injury, or the harm must be foreseeable. The harm need not be physical, but some kind of harm must be substantially certain to follow.
The last branch of the test—a visible or provable illness—is objective. Once again, it is not enough for the plaintiff to believe they have been injured—they must be able to demonstrate this objectively.
When Does Intentional Infliction of Mental Suffering Apply?
Intentional infliction of mental suffering requires an independent actionable wrong. In an employment environment, this means requiring conduct which goes beyond merely (appropriately) disciplining or dismissing an employee. Should these actions be tied to malicious intent on the part of the employer, however, the conduct may fall under the tort of intentional infliction of mental suffering should it cause the employee harm.
A plaintiff can argue for intentional infliction of mental suffering as against the agent of the company, or the company itself, as seen in the case Boucher v Wal-Mart Canada Corp, heard at the Ontario Court of Appeal.
Seeking Legal Assistance
Employers should be mindful that while proving intentional infliction of mental suffering may be difficult for employees, the damages awarded for this tort can be substantial. Therefore, prior to reacting to an employee, implementing disciplinary measures, or even dismissing an employee, it is better to ensure actions are taken appropriately to reduce any appearance of an intentional attempt to cause harm.
If you are an employer who wants to ensure appropriate steps are taken in their business, or an employee who has been harassed or unfairly disciplined, our team of experienced employment lawyers at Achkar Law can help. Contact us by phone at (800) 771-7882 , or email at firstname.lastname@example.org and we would be happy to assist.
Disclaimer: This blog is not intended to serve as, or should be construed as legal advice, and is only to provide general information. It is in no way particular to your case and should not be relied on in any way. No portion or use of this blog will establish a lawyer-client relationship with the author or any related party. Should you require legal advice for your particular situation, fill out the contact form, call (800)771-7882, or email email@example.com.
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