Intentional Infliction of Emotional Harm

This is a common tort used in the event of serious wrongdoing. It differs from the negligent infliction of mental suffering, which has yet to be recognized in Ontario.

The requirements for this tort are

(1) flagrant or outrageous conduct;

(2) calculated to produce harm; and

(3) resulting in a visible and provable illness.

While the first and third branches of the test are objective, the second branch is subjective; that is, the defendant “must desire to produce the consequences that follow, or the consequences must be known by the actor to be substantially certain to follow”. ¹

Such a review was made in the 1984 decision in Rahemtulla. The employer accused the plaintiff of theft. It had done no prior investigation. This was seen as sufficient to pass the second test of “calculated to produce harm”. It is a far cry from the early cases of advising a person falsely of the death of a loved one:

In the case at bar this element is established. It was clearly foreseeable that the accusations of theft which the defendant made against the plaintiff would cause her profound distress. That distress could only be exacerbated by the defendant's failure to conduct a proper investigation or allow the plaintiff to defend herself. It was equally foreseeable that the accusations would continue to cause distress into the future, when, in seeking employment, she would be queried by prospective employers as to the reasons for her dismissal from the defendant's employ.

The tort will qualify as a separately actionable wrong. ²

It had been, at one time, generally accepted that a medical diagnosis was required to establish the third test, although this was not the case in the above 1984 British Columbia decision, nor is so presently. ³

As noted above, in 2017, the Supreme Court of Canada concluded that medical evidence is not a prerequisite to showing emotional harm which has been suffered. ⁴ The impact of this decision as to the need to show a provable medical diagnosis has caused a reversal of this position.

In July of 2023, the Ontario Court of Appeal considered this very issue and concluded that medical evidence was not mandatory to the success of the tort: ⁵

However, this court’s decision in Prinzo held that the absence of medical expert evidence was not fatal. Likewise, in Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, a unanimous court rejected the historical practice of requiring “claimants alleging mental injury to show that such injury has manifested itself to an expert in psychiatry in the form of a clinically diagnosed, recognizable psychiatric illness” (at para. 29). Instead, the court adopted the standard set in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114, at para. 9: compensable psychiatric injury “must be serious and prolonged and rise above the ordinary annoyances, anxieties and fears that people living in society routinely, if sometimes reluctantly, accept”. Therefore, the testimony of lay witnesses in Saadati sufficed to demonstrate the requisite mental injury.

The Court continued to note that while the cases referenced above were not intentional torts, that there was no need to differentiate such claims.

The issue of the damage assessment is reviewed here.