The most notable is Merrifield v Ontario (Attorney General), where it appears that for the first time, a Canadian appellate court was asked to determine whether a common law tort of harassment exists. The court held that such a tort should not be recognized at this time. The Court did not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts, but concluded that the respondent failed to present a compelling reason to recognize a new tort of harassment in this case. The Court determined that this was not a case of a culmination of a number of related legal developments, and that current Canadian and international legal authority does not support the recognition of a tort of harassment.
In Plate v Atlas Copco Canada Inc, the Court dealt with the admissibility of judicial findings made during criminal sentencing proceedings in related civil proceedings. While the Court held that such findings were admissible, it cautioned about the weight to be accorded to such findings. In the sentencing proceedings, the judge found that the defendant was a “fiduciary” on the basis of the “breach of trust” provisions of the Criminal Code. There had been no submissions before the sentencing judge about the meaning of “fiduciary” or “fiduciary duties” in the civil context or whether such duties had been breached. Accordingly, the findings made by a civil judge of breach of fiduciary duty on a motion for summary judgment in reliance on findings made by the sentencing judge were set aside.
Two cases dealt with employment law matters. In Colistro v. Tbaytel, the court considered negligent infliction of mental illness and constructive dismissal. Swampillai v. Royal & Sun Alliance Insurance Company of Canada considered the test for unconscionability in the context of an employee seeking to get out of a release of LTD claims against an employer.
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