In last week’s blog, we discussed several recent changes to the common law, and in part, the Ontario Court of Appeal (“ONCA”), decision in Merrifield v. Canada (Attorney General) wherein the existence of a proposed tort of harassment was dealt with by the court. The ONCA decided that the tort does not currently exist in the common law of Ontario.
They also dealt with the difference between the suggested tort of harassment and the similar, but an alternative, tort of an intentional infliction of mental suffering. They concluded that the proposed elements of a tort of harassment were similar to those of the tort of intentional infliction of mental suffering, but less onerous, allowing for an easier route to a remedy. Therefore the discussion below focuses on what is required to establish the tort of an intentional infliction of mental suffering.
Elements of the Tort of Intentional Infliction of Mental Suffering
The ONCA created the test for establishing this tort in Prinzo v. Baycrest Centre for Geriatric Care such that to make out the tort a plaintiff must prove conduct of the defendant that is:
- flagrant and outrageous;
- calculated to produce harm, and which;
- results in a visible and provable illness.
The first (1) and third (3) branches of the test are objective. This means that the court must be satisfied through the factual matrix before it persuades the court that it should find the conduct, objectively viewed in all of the circumstances, is both flagrant and outrageous and resulted in a visible and proven illness.
The second branch of the test is subjective. Do the proven facts establish that the defendant(s) desired to produce the consequences that followed from their actions or that the results are known to be substantially certain to follow. Based on the ONCA decision in Piresferreira v. Ayotte, this second (2) element is not satisfied by evidence of foreseeability or reckless disregard. It must be proven that the result (illness) is substantially certain to follow and not just that it might follow. Further, although the extent of the harm suffered need not be anticipated, the kind of harm must have been intended or known to be substantially certain to follow.
An Intentional Tort
It must always be remembered that the tort is aimed at conduct that is intentional, not conduct that is reckless or inadvertent. The bar is therefore necessarily high given the consequences to a defendant of a deliberately wrongful act. It is the second (2) test above that is the most difficult to prove, being a subjective requirement. As was recently stated by the ONCA in Colistro v. Tbaytel:
The requirement that the defendant must have intended to produce the harm that occurred, or known that the harm was substantially certain to follow as a result of his or her conduct, is an essential limiting element of the tort and distinguishes it from actions in negligence. It is now well established that a plaintiff can recover in negligence for psychological injury. However, in Piresferreira, this court held, at paras. 50-63 that an employee cannot pursue a claim for negligent infliction of mental suffering in the employment context.
Colistro was an employment case. The ONCA clarified the subjective element but stating that it is not necessary to prove that the defendant intended to produce the specific psychiatric illness which resulted or to have known it was substantially certain to follow. It is enough to establish the more general intention of a serious psychological injury but not the specific condition that occurred. Therefore it is not enough to demonstrate that the defendant ought to have known (foreseeability or recklessness) that harm would occur but rather an intention to produce the kind of harm that resulted or to have known that it was almost certain to occur.
Alternatives
The tort is a difficult one to make out for a plaintiff. The less onerous tort of harassment does not exist. The tort of negligence for psychological injury is the best bet unless in an employment context when it is not available based on Piresferreira. Where it is available it requires the following:
- the defendant owed a duty of care to the claimant to avoid the kind of loss alleged;
- the defendant breached that duty by failing to observe the applicable standard of care;
- the claimant sustained damage; and,
- such damage was caused, in fact, and law, by the defendant’s breach.
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