Help for Harassment Victims May Be Coming
Many people believe they have a right to be free from harassment, whether at work or at home. Which is true. Sort of.
Background:
The starting point is that "criminal harassment" is an offence under Canada's Criminal Code. This is defined as follows:
"No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct […] that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them."
While protection against criminal harassment is an important safeguard, the reality is that often times harassing conduct may not result in a fear for safety. It is not hard to imagine a course of vexatious conduct that while insulting, demoralizing or otherwise unwelcome, does not result in palpable fear for safety. In which case, the criminal protections may be of little assistance.
But what may come as a surprise to some is that until recently there was no civil tort of harassment. Meaning, an individual who experienced harassment could not bring a stand-alone civil claim of harassment against the individual responsible. Rather, it had to be brought under the umbrella of another claim. For example, a defamation claim, or in the workplace context, a constructive dismissal claim.
While these other legal remedies are and remain important to addressing harassing conduct, difficulties can arise. Let's use the scenario of an employee being harassed by a co-worker. If the employee raises it with the employer, and the employer fails to address it, the employee may be able to bring a constructive dismissal claim against the employer or perhaps a human rights complaint if the harassment was based on a protected ground. But what if the employee likes their employer, does not want to file a claim against the employer, but rather wants the co-worker personally to be held accountable? It is a tricky spot. Unless the employee can show the co-worker's conduct amounted to another kind of tort, such as defamation or infliction of intentional mental suffering, there may be little recourse available to the employee.
Recent Legal Developments:
Recent legal developments suggest this may be changing.
In 2018-2019, the issue came before the Ontario courts in Merrifield v. Canada (Attorney General). The case involved a junior RCMP officer who alleged he was harassed and bullied by managerial members of the RCMP. In a lengthy decision, the Ontario Superior Court recognized that a common law tort of harassment existed in Ontario and allowed the junior officer's claim. This was then promptly overturned on appeal. Ontario's Court of Appeal confirmed there is no common law tort of harassment and found that it was not a case which required a new tort to be established. Notably, however, the Ontario Court of Appeal did not totally close the door on a tort of harassment, instead holding that it did not "foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts."
Less than two years later, in 2021, the issue of harassment again came before the Ontario court, this time in the context of an egregious instance of internet bullying, harassment and stalking. In Caplan v. Atas, the court faced a situation where one individual had cyber-bullied over 150 victims over the course of decades. Recognizing the current challenges in responding to internet defamation and harassment, the court explicitly recognized the tort of "internet harassment".
Since then, the tort of "internet harassment" has been judicially considered in Ontario a couple times. It is now well established that this tort will be made out "where the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity to the plaintiff, and the plaintiff suffers such harm."
The slightly odd position is that currently, in Ontario, the tort of harassment still has not been judicially recognized. But the tort of internet harassment has been. It creates a situation where harassing someone over the internet may result in liability, but if the same conduct occurred offline, it might not.
The Alberta court recently considered this very issue in the case of Alberta Health Services v. Johnston. This case concerned an individual who "spewed misinformation, conspiracy theories, and hate" through an online talk show and any time a microphone was near. In particular, he targeted the Alberta Health Services (AHS), and an individual, Ms. Nunn, who was employed by the AHS. The Alberta court considered in detail the law surrounding the recognition of a new tort and whether a new tort of harassment should be recognized. Ultimately, it found there should be a tort of harassment. This was premised in part on the perceived gap in the law, as well as the fact it makes little sense to recognize the narrower tort of internet harassment, without also recognizing a more general tort of harassment.
Takeaways:
So, where does that leave us?
As things stand, the Ontario courts still have not expressly recognized a tort of harassment, unless it is "internet harassment". However, with the decision in Alberta Health Services v. Johnston, and the overall public condemnation in recent years for harassing behaviour, it would not be surprising if we saw the Ontario courts follow suit and recognize a free-standing tort of harassment.
In the meantime, employers and employees are encouraged to take the time to review their workplace practices and policies and ensure they are not engaging in or facilitating harassment. These are best practices regardless of whether a new tort of harassment is developed or not. However, in the event the tort of harassment is recognized in Ontario, it could be another basis on which employers could face liability for bad behaviour in the workplace. On the flipside, if employees are engaging in harassing conduct in the workplace, they could find themselves personally liable for the conduct and its consequences.
As a final takeaway, we remind employers and employees alike that not all unpleasant conduct will amount to harassment, whether under the current laws or if a new tort is recognized. Parties should seek experienced legal advice to understand what may and may not amount to harassment in the workplace.
