TORONTO – Ontario’s highest court has overturned a ruling that granted an RCMP sergeant more than $100,000 in damages for years of harassment by superiors, saying the judge made several legal and factual errors.
The Court of Appeal for Ontario says the judge overseeing Peter Merrifield’s lawsuit erred in recognizing a new, freestanding “tort of harassment,” which would establish harassment as a separate wrong or breach for which someone can be held civilly liable.
The appeal court says such a tort does not currently exist in Ontario and Merrifield’s case does not present “compelling reason” to create one, though the court does not rule out the possibility that another case may provide grounds do so in the future.
It says Ontario Superior Court Justice Mary Vallee also made mistakes in determining that Merrifield’s superiors behaved in a way that constitutes intentional infliction of mental suffering – which is a recognized tort – and made “palpable and overriding errors in much of her fact-finding.”
Vallee found senior Mounties had behaved egregiously in a campaign of harassment against Merrifield after they decided he lied about his run for political office.
She awarded Merrifield $141,000 in damages and $825,000 in legal costs for the lawsuit. The federal government and two RCMP managers appealed the ruling.
Merrifield alleged his superiors waged a seven-year campaign to damage his reputation that included punitive transfers and unfounded criminal accusations after he took part in a federal Conservative nomination meeting in Barrie, Ont., in 2005.
In a ruling released late last week, the appeal court said Merrifield misled his superiors by telling them he had no plans to seek political office even though he was running in the nomination race.
What’s more, it said, Merrifield had not sought to be placed on unpaid leave while he did so, as is required under RCMP policies.
“Merrifield’s RCMP superiors had good reason to regard him as a colleague who could not be trusted to be completely forthright with them – a matter of importance in any position, but especially so in the context of Merrifield’s employment in the RCMP, it said.
The trial judge was also wrong to find that the risk of a conflict of interest for Merrifield, who worked in a unit that provided security to federal politicians, was “remote at best” and that management’s concern about it was “not bona fide.”
Management consulted with internal RCMP resources before finding Merrifield faced a potential conflict of interest and transferring him out of the unit, the court said. As a result, the judge’s finding that the transfer was unjust and punitive no longer stands, it said.
Vallee also erred in finding that management’s decision to audit Merrifield’s RCMP credit card expenses in 2012 without asking for an explanation or offering specifics constituted intentional infliction of mental suffering, the appeal court said.
“This conclusion cannot stand. It flows from palpable and overriding errors in the trial judge’s fact-finding and the incorrect application of the legal test,” the ruling says.
RCMP management had the authority to order the investigation and while it stated in a letter that Merrifield may have engaged in disgraceful conduct, that is not the same as alleging that he committed a crime, as the judge suggested, the court said.
There was also no evidence that the audit was intended to cause harm or that management knew that harm was substantially certain to follow, nor did the evidence establish a causal connection, the court said.
“Our conclusions that the trial judge erred in recognizing the tort of harassment and in finding that the tort of (intentional infliction of mental suffering) was established in regard to the … investigation are sufficient to allow the appeal,” it said.
The court granted the appellants the costs of the appeal, Merrifield’s cross-appeal and the initial trial and gave them 10 days to make submissions on the issue.
The RCMP said it has received the decision and is determining next steps but declined to comment further.