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2021.02.03

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THE EMPLOYERS' EDGE

New Tort of Harassment Recognized in Ontario Workplace Jurisprudence

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Tort law – the law of civil (as opposed to criminal or contractual) wrongs and losses – rarely arises in a workplace context. It is even rarer that labour and employment professionals would need to be aware of the latest developments in that area. However, that is not the case with respect to a recent Ontario Superior Court decision which, for the first time, recognized the tort of internet harassment in Ontario carried out over the internet.

The 68-page decision covers four separate actions brought by a number of plaintiffs, including the defendant’s former employer. All of the actions made similar allegations that the defendant had engaged in prolonged on-line harassment and defamation campaigns over an extended period.

The context for the employment-related action began in 1993 when the defendant, who was a sales representative at a real estate brokerage firm, was terminated from her employment for alleged professional misconduct. Shortly after the termination, the defendant contacted the principle of the firm and threatened reprisal against him if he were to report the alleged misconduct to professional regulators. He reported the threat to police who cautioned the defendant.

Several years later, the defendant sought a positive reference from the firm, which was refused. Nearly two years after that, the firm’s principal received a vile letter and learned that his neighbours had received letters falsely accusing him of obscene and illegal behaviour. Eventually, the behaviour seemed to go away and the police investigation was abandoned. However, almost twenty years later, an online campaign consisting of insulting, harassing, and obscene posts about the real estate firm, its principal, his family, employees and business associates was discovered, leading to the employment-related action against the defendant.

Justice Corbett had no trouble finding that the defendant had defamed each of the plaintiffs, but determined that the remedies available for defamation were insufficient to control the defendant’s behaviour and end the conduct at issue. It is on this basis that Justice Corbett recognized the existence of the common law tort of harassment, even though the Ontario Court of Appeal had declined to do so in in the case of Merrifield v Canada (Attorney General) in 2019. In Justice Corbett’s view, the defendant’s behaviour went far beyond defamation, and an order to stop the harassment provided the remedial breadth not available in the law of defamation.

Relying on American jurisprudence, Justice Corbett outlined the following test to establish that tortious harassment has occurred:

  1. Malicious or reckless communication or conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance;
  2. With the intent to cause fear, anxiety emotional upset or to impugn the dignity of the plaintiff; and
  3. The plaintiff does in fact suffer such harm.

The stringent nature of the test is meant to strike a balance between recognizing the prevalence of harassment and the ease with which similar campaigns can be waged in the internet age, and the recognition that not all conduct intended to annoy another person should be of concern to the law. Rather, “[i]t is only the most serious and persistent of harassing conduct that rises to the level where the law should respond to it.”

In the end, Justice Corbett ordered a number of remedies, including: a permanent injunction on internet posting; an order vesting title in the postings to the plaintiffs, to allow them to have them removed; and an order to “leave the plaintiffs alone”, or cease the harassing behaviour. Damage claims were abandoned by the plaintiff’s given the low chance for recovery.

Takeaways for Employers

While the recognition of a new tort is a significant legal development, it is important not to overstate the potential effect of the decision. For example, the threshold for establishing a tortious case of harassment appears to be very high and the factual context in which the tort was recognized is extreme and unlikely to be replicated.

Secondly, the willingness of higher courts to accept and implement Justice Corbett’s reasoning remains to be seen.

Third, as mentioned in the decision, other jurisdictions have implemented legislation to combat the societal ill of harassment, whether on the internet or otherwise. While Ontario has not taken that step, it is possible that legislation could be introduced that could limit or otherwise alter how civil courts deal with the issue of harassment.

Finally, for employers who are concerned about the social media activity of current or former employees, while there may be cases where a tort claim is appropriate, it is not the most effective or efficient strategy to help prevent the harassment from occurring. Rather, employers should focus on controls that they can implement now, such as up-to-date social media use policies and appropriate confidentiality language in employment contracts and settlement agreements. While nothing can completely prevent inappropriate and harassing behaviour, these tools can provide quick options to respond to harassment once it is discovered without resorting to slow and costly litigation.

The lawyers at CCPartners are available to assist you in preparing and enforcing COVID-19 guidelines in the workplace. Click HERE for a link to CCP’s COVID-19 Blog series, catch our webinars and podcasts on YouTube and SoundCloud, or wherever you listen to podcasts, or contact any of our team members to answer you workplace questions.

 

 

 

 

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