Recognition of the Tort of Harassment: Recent Development

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The tort of harassment has been undergoing a renaissance (or perhaps better stated as a naissance) in Canadian jurisdictions. While torts have had a long history as causes of actions in common law jurisdiction, it is only in the last several years that jurisdictions such as Ontario and now, Alberta, recognized a tort cause of actions for harassment in egregious circumstances.

False Start in Ontario

In Ontario, a 2017 case in Merrifield v. Canada (Attorney General) 2017 ONSC 1333 involved a lengthy decision in which an RCMP Officer, Mr. Merrifield, was successful in obtaining a significant award for damages (around $950,000.00) stemming from harassment that the plaintiff argued occurred after he chose to run for a Conservative Party nomination in a few election seasons. A number of incidents occurred, including investigations into unfounded allegations by the RCMP into Mr. Merrifield, failures by the RCMP to investigate Mr. Merrifield’s harassment allegations, poor handling of allegations by third parties against Mr. Merrifield and various other incidents.

The trial judge recognized a tort of harassment, and provided the following test:

  1. The Defendant’s conduct must be of an outrageous nature;
  • The Defendant must have intended to cause emotional distress or had reckless disregard for causing the same;
  • The Plaintiff must have suffered several or extreme emotional distress; and
  • The Defendant’s conduct must be the actual and proximate cause of the extreme emotional distress.

The trial judge found that Mr. Merrifield had suffered emotional distress and met the test set out above. He was therefore entitled to significant damages.

The case was appealed to the Ontario Court of Appeal, which rendered judgment in 2019. The Court of Appeal’s immediate concern was that there was a “jump” in the law noting that courts should only make gradual changes to the law and significant changes need to be left to legislation. Recognition of a new tort should be strongly grounded in precedent and other external factors, and not committed to lightly.

In reviewing Mr. Merrifield’s matter, the Ontario Court of Appeal found that the trial judge only relied on several (four) trial decisions and did not review academic authority, foreign judicial authority, nor other compelling reasons, including policy reasons, for the new tort. As such, the Ontario Court of Appeal overturned the trail judge’s decision and decided that, for the time being, a tort of harassment was not found in Ontario’s common law.

The Court of Appeal, however, kept the door open for the potential of a “properly conceived” tort of harassment to be recognized.

Second Start in Ontario

In 2021 another harassment matter was considered by Ontario courts in Caplan v. Atas 2021 ONSC 670. In that case the recognized tort of harassment was in relation to online harassment.

The facts of Caplan involved a defendant with a history of online harassment. The defendant would use the internet to “disseminate vicious falsehoods against those towards whom she bears grudges, and towards family members and associates of those against whom she bears grudges” which the court found to be “sociopathic”. A portion of the court’s introduction bears quoting at length:

“Cyber-stalking is the perfect pastime for Atas.  She can shield her identity.  She can disseminate vile messages globally, across multiple unpoliced platforms, forcing her victims to litigate in multiple jurisdictions to amass evidence to implicate her, driving their costs up and delaying the process of justice.  Unrestrained by basic tenets of decency, when she is enjoined from attacking named plaintiffs, she moves her focus to their siblings, their children, their other family members and associates, in a widening web of vexatious and harassing behaviour.” – Corbett J

As a result of the egregious behaviour of the defendant, the court looked at various remedies including those available under the law of defamation. The court found that, when faced with the sort of behaviour found in the Caplan case, the law of defamation did not have remedies sufficient to stop the behaviour of the wrongdoer. Therefore, to have recourse, victims of this form of behaviour needed access to a remedy that fit the wrongdoing.

The court therefore recognized the tort of online harassment and differentiated it from the tort found in Merrifield, on the facts likening them more to the factors of the Jones v. Tsige case which recognized the tort of inclusion upon seclusion, stating:

“As I said at the outset, the law’s response to Atas’ conduct has not been sufficient, and traditional remedies available in defamation law are not sufficient to address all aspects of Atas’ conduct.  Harassment, as a concept, is recognized in the criminal law. It is well understood in the context of family law.  In the Judgment I considered making a non-harassment order and rejected it because it had not been requested by the applicants. The concept of “harassment” as wrongful conduct is known to the law and is a social ill.  The concern, of course, on the other side of the question, is that people are not always on their best behaviour, and not all, or perhaps even most, conduct intended to annoy another person should be of concern to the law.  It is only the most serious and persistent of harassing conduct that rises to a level where the law should respond to it.”

The court found against the defendant and ordered a permanent injunction barring the defendant from posting against the various plaintiffs and their families and related individuals. In addition, the court ruled that the victims had ownership over the various postings and could therefore remove the postings. Due to the defendant’s bankruptcy, no financial remedy was given.

New Start in Alberta

In 2023 in Alberta Health Services v. Johnston, 2023 ABKB 209 the Alberta Court of King’s Bench (“CKB”) examined the circumstances involving Mr. Johnston, a mayoral candidate and COVID-19-response critic and his harassment of various employees of Alberta Health Services (“AHS”).  Mr. Johnston made various personal attacks against individuals working for AHS including stating that:

  • AHS employees are Nazis or terrorists; and
  • AHS employees deserved to be targeted by violence.

In addition, Mr. Johnston made personal attacks about the values and virtues of various employees of AHS, including accusing one of them of being an alcoholic.

One aspect of the decision considered whether public agencies could be defamed – which the CKB ruled out on the basis that the Charter of Rights and Freedoms enshrines the right of individuals to criticize government.

However, the CKB did recognize a tort of harassment, and not limited to online activities like the one noted above in Caplan. The CKB set out the following test for the tort of harassment in Alberta stating that a defendant:

  1. engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through or other means;
  • knew or ought to have known was unwelcome;
  • which impugn the dignity of the plaintiff, would cause a reasonable person to fear for her safety or the safety of her loved ones, or could foreseeably cause emotional distress; and
  • caused harm.

The court awarded damages to the individual, Ms. Nunn, in the amount of $650,000.00 and awarded a permanent injunction against Mr. Johnston. The AHS was not eligible for damages but was eligible for an injunction.

Conclusion

The recognition of a tort of harassment is growing in Canada. This should be a welcome development given the rise in egregious online and offline behaviour going hand in hand with recent developments in the online space, dissent over COVID-19 policies, and various other political and social factors. Employers and individuals in Canada may soon have greater recourse in cases where harm results from extreme behaviour.

At Bridge Legal & HR Solutions we can help you untangle and understand the web of legal obligations that applies to you whether in Alberta or in Ontario. To find out how we can help, contact us through our contact form or call us at 647-794-5442.

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