



COURT OF APPEAL FOR ONTARIO

CITATION: Merrifield v. Canada (Attorney General), 2019 ONCA
    205

DATE: 20190315

DOCKET: C63556

Juriansz, Brown and
    Huscroft JJ.A.

BETWEEN

Peter
    Merrifield

Plaintiff (Respondent/
Appellant by way of
  cross-appeal)

and

The Attorney
    General of Canada, Inspector James Jagoe,
Superintendent
    Marc Proulx

Defendants (Appellants/
Respondents by way of
  cross-appeal)

Sean Gaudet and James Gorham,
    for the appellants

Laura Young, John Kingman
    Phillips and John-Otto Phillips, for the respondent

Heard: September 18-19, 2018

On appeal from the judgment of Justice Mary E. Vallee of
    the Superior Court of Justice, dated February 28, 2017, with reasons reported
    at 2017 ONSC 1333, 42 C.C.L.T. (4th) 4.


By the Court:

[1]

This appeal relates to claims of harassment and bullying by Royal Canadian
    Mounted Police (RCMP) managerial members of the respondent Peter Merrifield from
    2005 to 2012. Merrifield was a junior RCMP Constable in 2005. He was promoted
    to Corporal in 2009 and Sergeant in 2014.

[2]

The litigation has been protracted; Merrifield issued his notice of
    action in May 2007 and a 40-day trial was held over a period of 17 months, from
    November 2014 - April 2016. A lengthy decision was released in February 2017.

[3]

The trial judges decision reviewed in considerable detail more than
    seven years of strained relations between Merrifield and several of his
    superiors in the RCMP. In allowing the action, the trial judge recognized a new
    freestanding tort of harassment and found that many of the managerial decisions
    made in relation to Merrifield constituted harassment. In addition, she found
    the appellants liable for intentional infliction of mental suffering in
    relation to one set of interactions. The trial judge awarded Merrifield
    $100,000 in general damages, $41,000 in special damages, and $825,000 in costs
    of the action.

[4]

We conclude that the trial judge erred by recognizing a tort of
    harassment, erred in applying the test for the intentional infliction of mental
    suffering, and made palpable and overriding errors in much of her fact-finding.
    The judgment must be set aside.

[5]

The appeal is allowed for the reasons that follow. Merrifields
    cross-appeal, seeking an increase in the damages awarded, is dismissed.

BACKGROUND

[6]

It is not necessary to review Merrifields career in detail. A brief
    summary of the facts relevant to the litigation suffices.

[7]

In February 2005, Merrifield was assigned to the RCMPs Threat
    Assessment Group (TAG), a unit responsible for providing protective services to
    federal politicians, including the Prime Minister. TAG duties also included
    monitoring criminal, extremist, and terrorist groups, and carrying out threat
    assessments.

[8]

Merrifields strained relations with RCMP management began in May 2005,
    when his superior officers learned that he had run for the nomination to be the
    Conservative Partys candidate in the upcoming federal election in the riding
    of Barrie without complying with the applicable RCMP regulations. It was
    decided that Merrifield was potentially in a conflict of interest position and
    should be removed from investigating a death threat made against Member of
    Parliament Belinda Stronach, who had recently left the Conservative Party
    caucus to join the Liberal Party caucus. Merrifield was transferred out of the
    TAG unit to another unit not responsible for protecting politicians.

[9]

On July 9, 2005, Merrifield appeared on a radio show as a terrorism
    consultant and was interviewed about terrorist threats to Canada. After having
    learned that this was not the first time that Merrifield had spoken publicly
    about national security, Merrifields line manager, Superintendent Marc Proulx,
    sent a memo to him on September 28, 2005, reminding him of his obligation to
    comply with applicable RCMP policies regarding media appearances.

[10]

In
    October 2005, Merrifield was refused assignment to the Special Operations
    Centre (SOC), which had been constituted to respond to a terrorist threat
    against Toronto.

[11]

In
    January 2006, Merrifield was transferred to Customs and Excise. He did not
    report for work but commenced sick leave. He did not report to his new post
    until July 2006. On January 5, 2006, Merrifield wrote to Proulx, accusing him
    of misconduct in his audit of Merrifields corporate American Express card
    usage. The card had been cancelled by the RCMP in October 2005 due to
    nonpayment.

[12]

On
    January 6, 2006, Proulx commenced a formal investigation pursuant to Part IV of
    the
Royal Canadian Mounted Police Act
,

R.S.C., 1985, c.
    R-10 (
RCMP Act
), to establish whether Merrifields use of his credit
    card had contravened the RCMPs Code of Conduct. The final report of the
    investigator concluded that Merrifield had contravened administrative policy by
    failing to pay the balance due on the card and had used the card for minor unauthorized
    purposes. A line officer issued a performance log directing Merrifield as to
    use of the credit card and expense policy.

[13]

On
    June 27, 2007, Merrifield commenced this action against the Crown, on behalf of
    the RCMP, and individual RCMP members Inspector James Jagoe, Superintendent
    Marc Proulx, Assistant Commissioner Michel Seguin, Chief Superintendent Norman Mazzerolle,
    and Superintendent Martin Van Doren, seeking damages for the mental distress he
    suffered as a result of managerial bullying and harassment. He twice amended
    his statement of claim, most recently in April 2012, seeking further
    declaratory relief related to claims under ss. 2(b), 2(d) and 3 of the
Canadian
    Charter of Rights and Freedoms
. The action was discontinued as against
    Seguin, Mazzerolle and Van Doren by order of the trial judge on November 17,
    2014.

[14]

On
    January 5, 2012, Merrifield sent an email message to the RCMP Commissioner and
    several other senior members of the RCMP, asking why his harassment claim was
    not being settled. Receipt of the email message was acknowledged but his
    question went unanswered.

The trial judges decision

[15]

The
    trial judge found that the tort of harassment exists in Ontario. Her analysis
    concerning the existence of the tort is quite brief in the context of an
    otherwise lengthy decision  a mere 8 paragraphs of her 896-paragraph judgment.
    She set out four questions (as submitted by the plaintiff) that must be
    answered  in order to establish entitlement to damages for harassment:

1. Was the conduct of the defendants toward Merrifield
    outrageous?

2. Did the defendants intend to cause emotional distress or did
    they have a reckless disregard for causing Merrifield to suffer from emotional
    distress?

3. Did Merrifield suffer from severe or extreme emotional
    distress?

4. Was the outrageous conduct of the defendants the actual and
    proximate cause of the emotional distress?

[16]

The
    trial judge found that the elements of the tort were satisfied. She found, for
    example, that Merrifields managers acted unreasonably in rejecting his
    explanation for failing to advise them he was running for the Conservative
    Party nomination in 2005. She found, further, that Merrifields transfer out of
    the TAG unit was not
bona fide
, and
    the potential conflict of interest his managers apprehended was remote at
    best and a pretext for his transfer. She also found that Merrifield was stood
    down by the SOC because the manager at the SOC knew that he had been removed
    from TAG.

[17]

The
    trial judge found that the appellants had a reckless disregard for whether
    their behaviour would cause Merrifield to suffer from emotional distress; that
    Merrifield suffered severe emotional distress; and that the appellants
    outrageous conduct was the actual and proximate cause of his emotional
    distress.

[18]

The
    trial judge found, further, that Proulxs decision to order a Part IV
    investigation without first asking Merrifield for an explanation of apparent
    irregularities in the use of his American Express card was flagrant and
    outrageous conduct that he should have known would cause Merrifield harm. She
    considered that Proulx acted hypocritically in ordering the Part IV
    investigation, because he had himself engaged in discreditable conduct contemporaneously
    in attempting to procure the services of a prostitute. The trial judge was
    satisfied that Merrifield suffered from depression and post-traumatic stress
    disorder as a result of the RCMP actions, and she concluded that Merrifield had
    established the tort of intentional infliction of mental suffering (IIMS).

DISCUSSION

I
.
THE
    TORT OF HARASSMENT

[19]

The
    decision under appeal is the first case in which a Canadian appellate court has
    been required to determine whether a common law tort of harassment exists. What
    is required in order for a new tort to be recognized or established? Neither
    party canvassed this issue, yet it is key to the resolution of this appeal.
    Accordingly, it is helpful to begin with a brief consideration of the nature of
    common law change, before considering whether a tort of harassment should be
    recognized at this time.

The nature of common law change

[20]

Common
    law change is evolutionary in nature: it proceeds slowly and incrementally
    rather than quickly and dramatically,
as McLachlin J. explained
    in
Watkins v. Olafson
,
[1989] 2 S.C.R. 750, at p. 760
:

Generally
    speaking, the judiciary is bound to apply the rules of law found in the
    legislation and in the precedents. Over time, the law in any given area may
    change; but the process of change is a slow and incremental one, based largely
    on the mechanism of extending an existing principle to new circumstances. While
    it may be that some judges are more activist than others, the courts have
    generally declined to introduce major and far-reaching changes in the rules
    hitherto accepted as governing the situation before them.

[21]

As
    she went on to explain at pp. 760-761, courts may not be in the best position
    to address problems in the law; significant change may best be left to the
    legislature:

There
    are sound reasons supporting this judicial reluctance to dramatically recast
    established rules of law. The court may not be in the best position to assess
    the deficiencies of the existing law, much less problems which may be
    associated with the changes it might make. The court has before it a single
    case; major changes in the law should be predicated on a wider view of how the
    rule will operate in the broad generality of cases. Moreover, the court may not
    be in a position to appreciate fully the economic and policy issues underlying
    the choice it is asked to make. Major changes to the law often involve devising
    subsidiary rules and procedures relevant to their implementation, a task which
    is better accomplished through consultation between courts and practitioners
    than by judicial decree. Finally, and perhaps most importantly, there is the
    long-established principle that in a constitutional democracy it is the
    legislature, as the elected branch of government, which should assume the major
    responsibility for law reform.

[22]

These
    wise words of caution have been reiterated by the Supreme Court in a variety of
    contexts including
R. v.
    Salituro
,
[1991] 3 S.C.R. 654,
and
R. v. Mann
,
2004
    SCC 52, [2004] 3 S.C.R. 5
9. The same idea is seen in
    English law: see e.g.
Launchbury

v.
    Morgans
, [1972] UKHL 5,
[1973] A.C. 127.

[23]

Thus,
    when the Supreme Court created a duty of honest contractual performance
in

Bhasin v.
    Hrynew
,
2014 SCC 71, [2014] 3
    S.C.R. 494
, it did so on the basis that good faith contractual
    performance
already existed
in Canadian common law as
a general organizing principle that
    underpins and informs existing common law rules. Creation of the new common law
    duty was justified on the basis that it was an incremental step that followed
    from the implications of the general organizing principle, a step that
    responded to societal needs and vindicated the reasonable expectations of
    commercial parties without precipitating unintended effects.

Common law change in Ontario

[24]

The
    importance of incremental development of the common law was discussed in
Jones v. Tsige
, 2012
    ONCA 32
, 108 O.R. (3d) 241, in which this court recognized the existence of
    a tort of intrusion upon seclusion.

[25]

Far
    from being created from whole cloth, the intrusion upon seclusion tort was
    grounded in what Sharpe J.A. identified as an emerging acceptance of claims for
    breach of privacy. He carefully reviewed Ontario and Canadian case law, in
    which he discerned both supportive dicta and a refusal to reject the existence
    of the tort, and provincial legislation that established a right to privacy
    while not foreclosing common law development. He also considered academic
    scholarship, much of which supported the existence of a right to privacy. He
    drew upon American tort law, which recognizes a right to privacy, as well as
    the law of the United Kingdom, Australia, and New Zealand. He also noted
    societal change  in particular, technological developments that pose a threat
    to personal privacy  and the impetus for reform that it created. [M]ost
    importantly, he said, w
e are presented in this
    case with facts that cry out for a remedy: at para. 69.

[26]

Ultimately,
    Sharpe J.A.s conclusion was couched in terms of
confirming
the existence of the tort rather than
    simply creating it. As he put it, at para. 65:

In my view, it is appropriate
    for this court to confirm the existence of a right of action for intrusion upon
    seclusion. Recognition of such a cause of action would amount to an incremental
    step that is consistent with the role of this court to develop the common law
    in a manner consistent with the changing needs of society.

Authority does not support the recognition of a tort of
    harassment

[27]

The
    trial judge in this case relied on four trial-level decisions proffered by Merrifield
    as supporting the existence of the tort and establishing its elements:
Mainland Sawmills Ltd. et al v. IWA-Canada
et
    al,
2006 BCSC 1195, 41 C.C.L.T. (3d)
    52
;
Savino v. Shelestowsky
,
2013 ONSC 4394, 4 C.C.L.T. (4th) 94;
McHale v. Ontario
,
2014 ONSC
    5179
; and
P.M. v. Evangelista
,
2015 ONSC 1419.

[28]

She
    erred in doing so. Taken as a whole, these cases confirm neither the existence
    of the tort nor its elements.

[29]

Mainland Sawmills
is the key case in the
    analysis. It underlies all of the subsequent Ontario trial decisions  this,
    despite the fact that it is a British Columbia trial level authority in which
    the court did no more than
assume
,
    for purposes of dealing with an application seeking to have particular claims dismissed,
    that the tort exists. Far from confirming the existence of the tort, the
    application judge in
Mainland

Sawmills
specifically concluded that the law is
    unclear.

[30]

As
    for the elements of the tort, these too were assumed by the application judge
    in
Mainland Sawmills
based on the
    plaintiffs submission  a submission that was based on American caselaw
    arising out of the tort of intentional infliction of emotional distress. In
    short,
Mainland Sawmills
is not
    authority for either the existence of the tort of harassment or the elements of
    such a tort.

[31]

Nevertheless,
Mainland Sawmills
has been cited and
    relied on in several subsequent cases in Ontario in which the tort of harassment
    has been asserted.

[32]

In
Savino
, the motion judge does no more
    than find that although a tort of harassment is not largely accepted, the door
    does not appear to be entirely closed on the possibility of this torts
    existence: at para. 15. The court cites
Mainland
    Sawmills
as one of the few cases in which the elements of the tort
    are set out.

[33]

McHale
appears to assume the existence of the
    tort and cites two cases,
Lynch v. Westario Power
    Inc.
,

[2009]
    O.J. No. 2927 (S.C.),
and
Mainland
    Sawmills
,

for the elements of the tort, only to conclude
    that the tort was not pleaded with sufficient particularity.
Lynch
specifically states that the existence of
    the tort of harassment is unclear and, like
McHale
, finds that the
    tort was not pleaded with sufficient particularity in accordance with
Mainland Sawmills
in any event.

[34]

P.M.
describes harassment as a still-developing tort and cites
Savino
and
Lynch
for the elements of the tort.
P.M.
is
    the only case cited by the respondent in which damages were awarded for harassment
    ($5,000), but the defendant in that case was the administrator of the estate of
    the tortfeasor and did not lead evidence.

[35]

The
    trial judge concluded that the law of harassment has evolved since 2011, citing
McHale
,
P.M.
,
    and
John v. Cusack
,

2015 ONSC 5004,

in
    support. The motion judge in
John
acknowledges that the existence of the tort is a live legal issue, but
    assumes its existence for purposes of a summary judgment motion, ultimately dismissing
    the claim as frivolous and vexatious.

[36]

This
    is the extent of the authority cited in support of the existence of the tort.
    In sum, these cases assume rather than establish the existence of the tort.
    They are not authority for recognizing the existence of a tort of harassment in
    Ontario, still less for establishing either a new tort or its requisite
    elements.

There is no other basis to recognize a new tort

[37]

Given
    that authority does not support the existence of a tort of harassment, should this
    court nevertheless recognize such a new tort?

[38]

To
    pose the question in this way is to suggest that the recognition of new torts
    is, in essence, a matter of judicial discretion  that the court can create a
    new tort anytime it considers it appropriate to do so. But that is not how the
    common law works, nor is it the way the common law should work.

[39]

At
    the outset, it is important to recognize that this is not a case like
Tsige
, which, as we have said, is best
    understood as a culmination of a number of related legal developments. As we
    have explained, current Canadian legal authority does not support the
    recognition of a tort of harassment.

[40]

We
    were not provided with any foreign judicial authority that would support the recognition
    of a new tort. Nor were we provided with any academic authority or compelling
    policy rationale for recognizing a new tort and its requisite elements.

[41]

This
    is not a case whose facts cry out for the creation of a novel legal remedy, as
    in
Tsige
.
That case concerned a highly significant
    intrusion into the plaintiffs personal information. The defendant, who was in
    a relationship with the plaintiffs former husband, used her workplace computer
    to gain access to the plaintiffs banking records and personal information over
    a period of several years  actions the court found to be deliberate,
    prolonged, and shocking. Discipline imposed on the defendant by her employer did
    not redress the wrong done to the plaintiff. In these circumstances, as Sharpe
    J.A. put it, [T]he law of this province would be sadly deficient if we were
    required to send [the plaintiff] away without a legal remedy.

[42]

That
    is not this case. In this case, there are legal remedies available to redress
    conduct that is alleged to constitute harassment. The tort of IIMS is one of
    these remedies, and it is discussed below.

[43]

In
    summary, the case for recognizing the proposed tort of harassment has not been
    made. On the contrary, as we will explain, there are good reasons opposing the recognition
    of the proposed tort at this time.

II.       THE INTENTIONAL INFLICTION OF MENTAL SUFFERING
    (IIMS)

[44]

The
    tort of IIMS is well established in Ontario and may be asserted as a basis for
    claiming damages for mental suffering in the employment context.

[45]

In
    the leading case,

Prinzo v. Baycrest Centre for Geriatric Care
, (2002) 60 O.R. (3d) 474
,
at
    para. 48, this court held that the test for IIMS is met where the plaintiff
    establishes conduct that is (1) flagrant and outrageous, (2) calculated to
    produce harm, and which (3) results in visible and provable illness.

[46]

A
    comparison of the elements of the proposed tort of harassment accepted by the
    trial judge and the elements of the existing tort of IIMS is instructive.

[47]

Whereas
    IIMS requires flagrant and outrageous conduct, the proposed harassment tort
    would require only outrageous conduct. More significant, IIMS is an intentional
    tort, requiring an intention to cause the kind of harm that occurred or
    knowledge that it was almost certain to occur. This is a purely subjective
    test:
Boucher v. Wal-Mart Canada Corp.
,
    2014 ONCA 419, 120 O.R. (3d) 481, at para. 43,
whereas the proposed tort
    of harassment would require either intention
or
objectively-defined
    reckless disregard. Finally, IIMS requires conduct that is the proximate cause
    of a visible and provable illness, whereas causing severe or extreme emotional
    distress is sufficient for the proposed tort of harassment.

[48]

Plainly,
    the elements of the tort of harassment recognized by the trial judge are
    similar to, but less onerous than, the elements of IIMS. Put another way, it is
    more difficult to establish the tort of IIMS than the proposed tort of
    harassment, not least because IIMS is an intentional tort, whereas harassment would
    operate as a negligence-based tort.

[49]

Given
    the similarities between IIMS and the proposed tort of harassment, and the
    availability of IIMS in employment law contexts, what is the rationale for
    creating the new tort?

[50]

Merrifield
    submits that the new tort must be created because there is an increased
    societal recognition that harassment is wrongful conduct. He notes that moral
    damages for mental distress can be awarded only at termination of employment,
    leaving a gap that the tort of harassment should fill. He asserts that the
decision of the Supreme Court in
Saadati v. Moorhead
, 2017 SCC 28, [2017] 1 S.C.R. 543, supports the
    creation of the tort of harassment, and
that the test the trial judge
    recognized for the tort is sufficiently stringent to limit the reach of the
    tort.

[51]

We
    disagree.

[52]

Saadati
is concerned with proof of mental injury in the
    context of a known cause of action. Although it may make damages for mental
    injury more readily available in negligence actions, it does not require the
    recognition of a new tort. Moreover, this court has not allowed negligence to
    ground a claim for mental suffering in the employment context:
Piresferreira
    v. Ayotte
, 2010 ONCA 384, 319 D.L.R.
    (4th) 665.

[53]

In
    summary, while we do not foreclose the development of a properly conceived tort
    of harassment that might apply in appropriate contexts, we conclude that
    Merrifield has presented no compelling reason to recognize a new tort of
    harassment in this case.

Was IIMS established?

[54]

The
    trial judge set out the test for IIMS outlined by this court in
Wal-Mart
. This requires a plaintiff to
    establish that the defendants conduct:

1) was flagrant and outrageous;

2) was calculated to harm the plaintiff; and

3) caused the plaintiff to suffer a visible and provable
    illness.

[55]

The trial judge found that Proulxs decision to order a Part IV
    investigation into Merrifields travel credit card usage was both flagrant and
    outrageous because: a) he did not ask Merrifield for an explanation for his
    cash withdrawals, b) he did not reply to Merrifields question about whether he
    had reason to believe the credit card was being used for non-RCMP purposes, c)
    he provided no particulars of the transactions that concerned him or a date
    range for which the investigation was to be conducted, and d) he alleged
    discreditable conduct contemporaneous to engaging in discreditable conduct
    himself, namely attempting to procure a prostitute. She found that
Proulx had a reckless disregard for causing Merrifield emotional
    distress, and that emotional distress was a consequence that was known to be
    substantially certain to follow from the decision to order the investigation.
    Finally, the trial judge found
that Merrifield suffered from depression
    and post-traumatic stress disorder, based largely on his evidence and that of
    his family doctor that he was off work sick. Thus, she concluded that the tort
    of IIMS was established solely on the facts of the Part IV credit card
    investigation.

[56]

This
    conclusion cannot stand. It flows from palpable and overriding errors in the
    trial judges fact-finding and the incorrect application of the legal test.

[57]

First,
    the trial judge suggests that Proulx was required to be satisfied that there
    was a breach of the RCMP Code of Conduct prior to ordering the investigation.
    This is incorrect. Proulx had the authority under s. 40(1) of the
RCMP Act
to
    order an investigation after having satisfied himself that Merrifield may have
    contravened RCMP policy on the use and payment of his RCMP credit card.

[58]

Second,
    Proulxs January 2006 mandate letter stated that Merrifield was suspected of
    having contravened administrative policy. At its highest, the letter stated
    that Merrifield may have engaged in disgraceful conduct. This was serious,
    but it was not equivalent to alleging the commission of criminal offences, as
    the trial judge stated.

[59]

Third,
    the trial judge found that Proulxs initiation of the Part IV investigation was
    flagrant and outrageous because Proulx himself had engaged in disgraceful
    conduct at a time contemporaneous to initiating the investigation: that is,
    that he had been identified as attempting to procure a prostitute in a John
    Sting operation. This was plainly a legal error. The inference that Proulxs
    concerns with Merrifields credit card misuse could not be
bona fide
because he had breached a wholly
    unrelated provision of the Code of Conduct
after
initiating the Part IV investigation is palpably wrong. There is simply no
    logical connection between the two. We accept the Crowns submission that the
    trial judges reliance on this evidence vitiates her entire finding with
    respect to the Part IV investigation, and also calls into question her
    evaluation of the rest of Proulxs evidence. In our view, this piece of
    evidence was irrelevant. It was never pleaded and should not have been
    admitted.

[60]

In
    sum, the IIMS argument failed at the first requirement and the trial judge
    erred in concluding otherwise. But the trial judge also erred in finding that
    the second and third elements of the tort were established. There was no
    evidence that Proulxs conduct was intended to cause harm or that he knew that
    harm was substantially certain to follow from his decision to order the Part IV
    investigation, and emotional distress was insufficient in any event. Finally,
    despite multiple findings of flagrant and outrageous conduct, the evidence did
    not establish the requisite causal connection.

[61]

Our conclusions that the trial judge erred in recognizing the
    tort of harassment and in finding that the tort of IIMS was established in
    regard to the Part IV investigation are sufficient to allow the appeal. It is
    not necessary to address all of the additional arguments made by the appellants;
    however, given that most of the trial was focused on contested issues of fact, we
    consider it appropriate to address additional palpable and overriding errors the
    trial judge made in her analysis, as we explain below.

III.      FACTUAL ERRORS

[62]

The
    trial judge made numerous palpable and overriding errors in her fact- finding.
    These errors include ignoring relevant evidence, considering irrelevant
    matters, and making findings of fact that are clearly wrong. These errors
    preclude a conclusion that Merrifield was harassed  even assuming that a tort
    of harassment exists, with the elements accepted by the trial judge  as well
    as the trial judges conclusion that the tort of IIMS was established in
    relation to the Part IV investigation or in any other context.

Merrifields conduct and explanation for running for the
    Conservative Party nomination

[63]

The
    event that initiated Merrifields dispute with the RCMP was his standing for
    the Conservative Party nomination in the Barrie riding in 2005. The trial
    judges findings concerning Merrifields rationalization of his conduct and the
    RCMPs reaction are clearly unreasonable.

[64]

In
    evaluating the factual record, the trial judge failed to keep in mind the requirements
    of the governing regulations:
Royal Canadian Mounted Police Regulations,
    1988
, SOR/88-361. (These regulations were repealed in 2014, after all the
    events of this case.)

[65]

Section
    58.4 (1) of the regulations provided that a member who was a peace officer may,
    only while on leave without pay granted for that purpose, (a) run for
    nomination, or stand as a candidate, in a federal, provincial or territorial
    election. Nothing in the RCMP Administrative Manual is inconsistent with the regulations.

[66]

Merrifield
    was aware of the regulations in 2004. On February 3, 2004, he wrote an email to
    Sergeant Verrecchia  Advisor, Harassment, Human Rights, Conflicts of Issue,
    Central Region  seeking clarification of the regulations. His email indicates that
    he had considered the regulations closely, as he quoted and commented on
    several sections. He questioned whether the regulations applied if he were
    standing for nomination in an electoral district that did not exist as yet. Verrecchia
    replied stating unequivocally: [T]he policy states you must be on LWOP [leave without
    pay] to run for nomination. She added that the leave would be without pay and
    that it applied, in the case of the nomination process, beginning on the day
    on which the member enters the process and ending the day he withdraws or the
    process concludes. Verrecchia then provided Merrifield with a written
    memorandum dated February 11, 2004, indicating that the Professional Standards
    and Special Advisory (Legal) Unit of Internal Affairs had confirmed that while
    running for nomination a member must be on LWOP. The memo reminded Merrifield
    that he had to submit his request for LWOP through proper channels and have it
    approved, and that it was his responsibility to identify and avoid situations
    of conflict.

[67]

In
    2004, Merrifield sought nominations in three ridings, but sought LWOP for only
    two of the three ridings. Subsequently, Merrifield ran as a candidate in the
    federal election while on LWOP and returned to his duties following his defeat.

[68]

In
    2005, Merrifield filed his papers seeking nomination in the Barrie riding some
    weeks before the nomination meeting was held on May 14, 2005. Merrifield
    revised his campaign literature from 2004 and had it reprinted. He had 300
    pamphlets distributed. He had people working on his campaign, obtained a list
    of local party members, made audio recorded telephone calls, and had a campaign
    website. However, he did not advise the RCMP that he was running and did not
    request LWOP to run for the nomination.

[69]

Shortly
    before the nomination meeting on May 14, Merrifield was asked if he had any
    ambition to run in another election. According to Assistant Sergeant Crane,
    Merrifield stated: None whatsoever. It was too expensive. Merrifield
    testified that he told Crane and Jagoe that he would not be running in an
    election anytime soon. This, after informing those present at a dinner that
    he had received a call from the Richmond Hill riding of the Conservative Party
    offering him the candidacy in that riding.

[70]

A
    few days following the nomination meeting, Crane and Jagoe learned that
    Merrifield had been running for the Conservative Party nomination in Barrie at
    the time of the conversation detailed above. They thought that Merrifield had
    not been forthright with them. When they confronted him with the fact he had
    run for nomination without disclosing it or obtaining proper leave, Merrifield
    explained the difference between running for nomination and running in a public
    election "at least twice, and stated that he was running as a protest.
    The trial judge thought it unreasonable of Crane, Jagoe, and Proulx not to
    accept Merrifields explanation. At para. 749 of her decision, she states:

A
    logical explanation of the difference between a nomination meeting [and] an
    election fell on deaf ears. Surely, these two higher ranking officers [Crane
    and Jagoe] who had management responsibilities were capable of understanding
    the difference. I find that they chose not to understand it.

[71]

At
    para. 752 of her decision, the trial judge states that Proulx did not know the
    difference between a nomination meeting and an election. To him it was all the
    same thing.

[72]

Given
    the regulations, it made no difference whether Merrifield had been running for
    nomination or for election. He was required to be on leave during the entire
    period he was running for nomination. He should have sought and obtained LWOP
    before he stood for nomination, as Verrecchia had advised him in writing in
    2004.

[73]

The
    trial judge was clearly wrong in finding that Crane, Jagoe, and Proulx were
    unreasonable in not accepting Merrifields reliance on the irrelevant
    distinction between an election and a nomination. Merrifields responses to
    direct questions led them to believe he had no current political ambitions at a
    time when he was actively involved in the political process. That, his failure
    to advise his line supervisor and request LWOP, and his subsequent self-serving
    rationalization for his conduct gave his superior officers good reason to
    conclude that he could not be trusted to be forthright with them. They could
    reasonably believe that a forthright colleague would have disclosed that he was
    running for nomination at the very time he was asked questions exploring his
    political ambitions. Crane and Jagoe could reasonably view Merrifields
    response to the question about whether he had ambition to run for election 
    none whatsoever  as a half-truth at best. At trial, Crane still believed
    that Merrifield had lied to him  that he had said one thing and done another.

[74]

The
    trial judge supports Merrifields rationalizations by pointing to several
    irrelevant considerations.

[75]

The
    trial judge rejected the RCMPs argument at trial that Merrifield ran to win
    the nomination and accepted Merrifields testimony that he stood for nomination
    only to have the status to speak at the nomination meeting and as a strategy to
    divert votes from the leading candidate. She accepted that Merrifield had not
    sold any (para. 688) (or many (para. 747)) memberships and did not have the
    required support to win the nomination.

[76]

These
    irrelevant considerations do not excuse Merrifield for contravening the
    regulations. They do not change the facts that Merrifield stood for nomination;
    that he did not apply for leave; that he did not advise the RCMP before he ran;
    and that he did not disclose the fact he was running when asked directly about
    his political ambitions.

[77]

The
    trial judge also excused Merrifields conduct by observing that the nomination
    was a private event open only to party members, and that there was no
    wide-spread public knowledge of Merrifields involvement. Again, this was
    irrelevant. The regulations requiring leave expressly applied to the nomination
    process without regard to the nature of that process. It was a legal error to
    consider that the private nature of a nomination process excused Merrifields
    non-compliance with the regulations.

[78]

The
    trial judge minimized the significance of Merrifields candidacy for the nomination
    throughout her decision. The fact is that he ran as a candidate for the
    nomination. He completed the nomination papers and distributed campaign
    material and flyers to party members. It was irrelevant what his intentions
    were in doing so  irrelevant whether he intended to win or could have done so.

[79]

The
    trial judge accepted Merrifields testimony that he did not believe he needed LWOP
    based on his conversation with Sgt. Boos and his understanding of how the
    earlier LWOPs were re-categorized. Indeed, there had been confusion about how
    his previous leaves without pay to run for nominations and election should be
    coded. But Sgt. Boos said nothing that could reasonably be construed to lead
    Merrifield to believe that he did not need LWOP, however it was coded. Even accepting
    that Merrifield believed his LWOP could be coded personal needs LWOP or
    special leave without pay, the fact remains that he still had to arrange leave
    and advise the RCMP that he was running for nomination.

[80]

The
    trial judge did not disagree with Merrifields position at trial that he needed
    leave only for the day of the nomination meeting. But that position is plainly
    a self-serving reading of the regulation. Verrecchia had clearly advised
    Merrifield otherwise in writing in February 2004. Merrifield should have
    arranged leave from the date he filed his candidacy papers with the riding
    until he was no longer a candidate for nomination. During this period he was
    sending out his campaign flyers, had an active website, and was soliciting
    support for his nomination. Had Merrifield complied with the regulations,
    Crane, Jagoe, and Proulx would not have been surprised to learn that he had
    run.

[81]

In
    summary, the trial judges analysis of Merrifields rationalization of his
    conduct and the RCMPs reaction to it is clearly unreasonable. Merrifields
    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 Merrifields employment in the
    RCMP.

Merrifields potential conflict of interest

[82]

A
    second significant error was the trial judges finding that Merrifields
    potential conflict of interest was remote at best and that the RCMPs concern
    about it was not 
bona fide
. In arriving at this conclusion, the trial
    judge failed to consider all of the evidence. In particular, she failed to
    consider the evidence that Merrifield himself had perceived the potential for a
    conflict, and she failed to consider the evidence of Verrecchia, despite having
    summarized it earlier in her reasons.

[83]

At
    para. 149, the trial judge mentioned in passing that Merrifield declined to
    perform an Order in Council check on Belinda Stronach because he was friends
    with her. This is neither a complete nor accurate account of Merrifields
    testimony. Merrifield described his personal relationship with Stronach as
    acquaintances. Significantly, he said that I feltthat me conducting an order
    in council check for her
would be a conflict of interest, so I declined to
    do it
 (emphasis added). When asked to explain why he thought it would be a
    conflict of interest, he responded: It would be a conflict of interest,
    because if there was something omitted or something erroneously reported, that
    personal relationship could be seen as a conflict of interest, whether through
    concealment or advantage. So it would be best not to conduct that order in
    council check. He further expressed his view that the conflict did not arise
    from his political affiliation but from his personal relationship with
    Stronach. What Merrifield described as a personal relationship was an artifact
    of his political activities. He said Stronach had been very helpful and
    supportive throughout the 2004 campaign year for me. He added that he had sat
    with her on the Conservative caucus for the Greater Toronto Area.

[84]

Further,
    the trial judge noted that when Merrifield was assigned to investigate a death
    threat against Stronach, he contacted Ms. Stronach directly on that day to ask
    her if she was comfortable with his doing the investigation. In his testimony,
    he described this contact with Ms. Stronach as having taken steps to avoid [a]
conflict of interest
and ensure that the person who was [the] subject of
    the threats was comfortable with the investigation (emphasis added).

[85]

This
    testimony may not establish that Merrifield thought he was in a conflict of
    interest position, but it does show that he perceived the
possibility
of
    a conflict.

[86]

The
    trial judge did not refer to Merrifields decision not to perform the Order in
    Council check, or to his asking Stronach if he should recuse himself from
    investigating the death threat, when she concluded at para. 754 that the
    potential for a perceived conflict of interest was remote at best. The
    evidence that Merrifield shared the RCMPs perception of a possible conflict of
    interest undermines her finding that the perception was remote at best.

[87]

The
    trial judges finding that the RCMPs perceived conflict was not
bona fide
lacks evidentiary support. The RCMP management was aware that Merrifield had
    asked Stronach if he should recuse himself from the investigation and was
    concerned about the appearance of their relationship as a potential conflict.
    As Jagoe explained in his testimony, if Merrifield were not removed from the
    death threat investigation, it would appear that Ms. Stronach was deciding who
    was doing the investigation and this could be viewed as a conflict. This was a
    reasonable consideration.

[88]

In
    summarizing the evidence, the trial judge recounted that Proulx checked with
    Verrecchia on May 24, 2005, asking whether he was wrong to think that there
    was a conflict. The trial judge reviewed Verrecchias testimony beginning at para.
    168. Verrecchia said that Proulx sought her guidance about the conflict of
    interest policy and whether Merrifield had contravened it. Among other things,
    she told Proulx that Merrifields investigation of Stronachs death threat was
    a conflict as he was partisan and his objectivity might be questioned. The RCMP
    had to be objective, especially with respect to political investigations. According
    to the trial judge, at para. 170, Verrecchias view was that:

[O]bjectively, it was an apparent conflict for Mr. Merrifield
    and the RCMP. If something had happened, Mr. Merrifields integrity could be
    questioned and the Forces objectivity could be questioned as well. His
    involvement in the Stronach investigation created both perceived and apparent
    conflicts.

[89]

Verrecchia
    also stated her concerns about the campaign literature Merrifield had
    distributed while he was not on LWOP and still working for the RCMP. He was
    speaking against some of the laws of the day, for example the gun registry,
    which was a law of Canada that had to be enforced by the RCMP. Verrecchia said:
    While working as an RCMP officer, he should not have taken a public stance
    against the government and its existing laws. He had an obligation to enforce
    the laws and remain objective. Significantly, the trial judge noted that Verrecchia
    had advised Proulx that Mr. Merrifield was proceeding contrary to the advice that
    she had given him in 2004.

[90]

Verrecchia
    also pointed out that section 12.12 F of the RCMP Conflict of Interest Policy
    states that once a member returns from LWOP, the officer is to determine a
    suitable assignment taking into account political opinions expressed, political
    impact that may result from the posting and investigations with political
    overtones being conducted by the proposed unit. She stated that she had
    advised Proulx that Merrifield should not be doing any political investigations
    as it was a conflict.

[91]

The
    fact that Proulx consulted and followed the advice of internal resources at the
    RCMP before forming a firm opinion that Merrifield posed a potential conflict
    of interest, and before transferring him out of TAG, demonstrates that the
    trial judges finding that his action was not
bona
    fide
was clearly wrong. On no understanding could his conduct be
    said to be outrageous.

[92]

A
    more minor matter is that Verrecchias explanations show that the trial judge
    was also clearly wrong in stating, at para. 752, that Mr. Merrifields
    political views were irrelevant. His political views would have been less
    problematic if he had followed the regulations and been on LWOP, but as an
    active RCMP officer he had expressed political views in opposition to the laws
    of Canada that he was required to enforce, and in these circumstances it was
    not unreasonable to be concerned about a conflict of interest.

[93]

The
    trial judge considered it significant that no conflict was apprehended when
    Merrifield, after running in the election in 2004, worked in the Integrated National
    Security Enforcement Team (INSET) and was assigned to TAG, a sub-unit of INSET,
    in February 2005. Verrecchia explained in her testimony that this was not a
    concern as his LWOP status had separated him from the RCMP during the campaign
    and election period. As well, Proulx, who became Merrifields line officer at
    TAG in February 2005, was unaware of Merrifields previous political activities
    and unfamiliar with the policies that applied to RCMP members engaging in
    political activities. That is why he consulted Verrecchia.

[94]

In
    her analysis section, the trial judge made only passing reference to Verrecchia.
    At para. 753, she said that Proulx consulted Sgt. Verrecchia who believed that
    there could be a problem with perceived conflict. The trial judge then went on
    to state that Proulx also consulted the RCMP Policy Branch. The trial judge
    pointed out that the Policy Branch took a long time to respond and that, when
    it did, its reply was not responsive to the issue. She then found that if
    there was a significant concern that Mr. Merrifields attendance at the Barrie
    nomination meeting had compromised his ability to work in national security,
    the Policy Branch would have provided Supt. Proulx with direction in a timely
    manner.

[95]

As
    the Crown points out, there are two problems with this.

[96]

First,
    the issue was not whether Merrifields political activities compromised his
    ability to work in national security; it was whether his political activities
    compromised his ability to protect politicians. Second, the trial judge was
    wrong to ascribe bad faith to Proulx, who was not responsible for the delay of
    the Policy Branch and was acting on the best information and advice he had been
    given. It is illogical for the trial judge to conclude that, because the Policy
    Branch took longer to answer Proulxs inquiries than she considered reasonable,
    Proulxs concerns were not
bona fide
.

[97]

Setting
    aside the trial judges finding that Proulxs concern over a potential conflict
    of interest was not
bona fide
sweeps
    away additional findings. For example, it sweeps away the finding that
    Merrifields transfer out of TAG constituted an other type of discipline that
    was unjustified and punitive.

Merrifields January 5, 2012 email correspondence

[98]

On
    January 5, 2012, Merrifield sent a lengthy email to a number of senior members
    of the RCMP, including the Commissioner, Deputy Commissioner, and Assistant
    Commissioner, lamenting that the RCMP had taken no steps to settle his case and
    that the Department of Justice did not have the best interest of the RCMP at
    heart. In the email he made a serious allegation of misconduct by Proulx.

[99]

The
    trial judge evidently regarded the email as significant and set it out in full
    at para. 557 of her reasons. She said that in the email Merrifield was taking
    extraordinary steps to contact upper management with the hope of resolving his
    concerns. She found that Merrifield received no response to the email and that
    the RCMPs conduct in ignoring this email went beyond all standards of what is
    right or decent. I find that it was one of the actual and proximate causes of
    Mr. Merrifields severe emotional distress.

[100]

The trial judges
    analysis is clearly erroneous. Merrifield and the RCMP were opposing parties in
    litigation. The proper avenue for communication between the parties was through
    counsel. In effect, Merrifield was complaining that the RCMP was defending the
    action rather than settling it. His request should have been communicated
    through his counsel. The RCMP response, if any, likewise should have been
    through counsel.

[101]

In any event, the
    trial judge was mistaken in saying the RCMP did not respond to the email. The Assistant
    Commissioner emailed Merrifield on January 6, 2012, the day after his email was
    received, informing him that the RCMP was continuing its discussions with Department
    of Justice counsel regarding the most appropriate manner to proceed with this
    civil action against us that is currently before the courts.  He added that
    the RCMP had not abandoned efforts towards trying to reach a resolution and anticipated
    additional discussions with you
and your counsel
in this regard (emphasis
    added).

[102]

In the circumstances,
    this was an entirely appropriate response.

Proulxs failure to set the record straight

[103]

It was patently wrong
    for the trial judge to find it outrageous for Proulx not to have set the
    record straight with Van Doren by telling him after the SOC incident that his
    concerns with Merrifield had been addressed, and that Merrifield had been
    cleared of wrongdoing. As we have explained above, the perception that
    Merrifield could not be trusted to be completely forthright could reasonably be
    held. The fact that Proulxs September 28, 2005 letter to Merrifield warned
    rather than disciplined him did not give rise to an obligation on Proulx to
    inform anyone that Merrifield had been cleared.

[104]

In our view, this
    matter illustrates the readiness with which the trial judge identified
    wrongdoing on the part of the RCMP managers and found them to have acted
    outrageously. We note that the trial judge found that many of the other things
    the RCMP did or did not do were elements of conduct she considered outrageous.
    We are not to be taken to agree with those other findings, but for purposes of
    this decision it is not necessary or fruitful to go through all of them here.

CONCLUSION

[105]

In summary, the trial
    judge erred in concluding that the tort of harassment exists in Ontario and we
    are not persuaded that the tort should be recognized. The trial judge also
    erred in concluding that the tort of IIMS was made out based on Proulxs
    initiation of a Code of Conduct investigation. No other facts found by the
    trial judge met the test for IIMS.

[106]

For these reasons, the
    appeal is allowed. The cross-appeal is dismissed.

[107]

The appellants are
    entitled to costs of the appeal, the cross-appeal, and the trial.
The appellants may make brief submissions on costs, not exceeding 10
    pages, to the Registrar of this court within 10 days of this decision. The
    respondent will have 10 days from
service of those written submissions
    to serve and file his submissions, which shall not exceed 10 pages.

Released: March 15, 2019 (D.B.)

R.G. Juriansz J.A.

David Brown J.A.

Grant Huscroft J.A.


