Introduction
Canada is known for its commitment to human rights and the protection of its citizens from various forms of harm, including harassment. The tort of harassment is a relatively recent development in Canadian jurisprudence, reflecting the evolving recognition of the harm caused by harassment in various contexts. Outside the tort of harassment, victims of harassment have utilized other claims for legal recourse, often relying on other torts like defamation, intentional infliction of emotional distress, or negligence to seek redress. In recent years, several jurisdictions have recognized the tort of harassment, with different outcomes.
In Alberta
The tort of harassment was recently recognized in Alberta, in 2023 ABKB 209.
This decision involved actions by the defendant, a talk show host and mayoral candidate in Calgary in 2021, against the plaintiffs, a health services organization and a senior employee of that organization. During the defendant’s campaign, the plaintiffs were frequently targets of criticism by the defendant. In interviews and on social media platforms, he repeatedly referred to the plaintiffs as criminals, terrorists, and nazis. The defendant suggested that the plaintiffs had committed crimes of criminal trespass, criminal harassment, extortion, intimidation, and terrorism and that the health organization’s employees deserved to have violence committed against them in return.
The plaintiffs asserted that they were defamed by the defendant and sought a significant award of damages and a permanent injunction restricting him from making defamatory statements. The plaintiffs also argued that his threatening and abusive conduct constituted “tortious harassment,” an invasion of privacy, and assault.
The Alberta King’s Bench (ABKB) found that existing torts did not address the harm caused by harassment. As such, they created a new tort of harassment with the following elements:
- the defendant engaged in repetitive communications, threats, insults, stalking or other harassing behavior in person or through other means;
- that the defendant knew or ought to have known was unwelcome;
- which impugn the dignity of the plaintiff, would cause a reasonable person to fear for the plaintiff’s safety or the safety of the plaintiff’s loved ones, or could foreseeably cause emotional distress; and
- caused harm.
Importantly, the ABKB noted that harassment occurs when the behaviour is recurring and creates an oppressive atmosphere.
Tort of harassment in Ontario
While the tort of harassment is new in Alberta, it already has a history in Ontario. In 2017 ONSC 1333, an Ontario trial judge established the tort of harassment in a case concerning a claim by the plaintiff RCMP officer. The plaintiff brought the claim after several years of what he characterized as bullying and harassment from the defendant, stemming from his involvement in politics. The trial judge sided with the plaintiff, and in doing so recognized harassment as a new free-standing cause of action.
However, the tort of harassment had only a short life in Ontario, as in 2019 the Court of Appeal overturned the lower court judgement. In 2019 ONCA 205 the Court held that at common law, courts are required to only make incremental change to the law, extending recognized legal principles to novel situations. They wrote that such significant change is best left to the legislature. The Court of Appeal also noted that the trial judge had not supported the implementation of the tort with enough grounding in existing case law. As a result of this judgment, at least for now, no tort of harassment exists in Ontario. The Court of Appeal did note, however, that it did not foreclose the development of a “properly conceived” tort of harassment in future.
Conclusion
While the implementation of the tort of harassment in Alberta could mark the beginning of more widespread adoption in other Canadian jurisdictions, it remains to be seen whether it will have more staying power in Alberta than it did in Ontario. This will be an important area for employers to remain aware of as it develops, and especially to keep in mind the role that the tort of harassment could play when it comes to potential vicarious liability for the conduct of employees.
By Nicole Simes
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