Employment & Labour

Ontario Court of Appeal rejects tort of harassment

By Paul Russell, AdvocateDaily.com Contributor

Just because Ontario's highest court has ruled that the tort of harassment does not exist, doesn’t mean there aren’t options available to wronged parties, says Toronto employment lawyer John De Vellis.

A three-judge panel of the Ontario Court of Appeal (OCA) found there was “no compelling reason to recognize a new tort of harassment,” overturning a trial judge’s decision to recognize it as part of a $140,000 award to a former RCMP officer.

De Vellis, partner with Shibley Righton LLP, says the court found there are already similar torts in place, such as those focusing on sexual harassment or the intentional infliction of mental suffering (IIMS).

“The employee in this case was asking for recognition of a new tort of harassment, which would have some of the same elements as IIMS, but a little bit lower of a test,” he tells AdvocateDaily.com.

Court documents state, “... the test for IIMS is met where the plaintiff establishes conduct that is (1) flagrant and outrageous, (2) calculated to produce harm, and which (3) results in visible and provable illness.”

To meet the standard for IIMS, De Vellis says people also have to prove the other party intended to cause suffering.

“The difference between IIMS and harassment is that you don’t have to necessarily prove an illness for harassment, and it doesn’t have to be intentional,” he says.

The OCA judgment states that when the lower court made its decision, the “analysis concerning the existence of the tort is quite brief in the context of an otherwise lengthy decision — a mere eight paragraphs of her 896-paragraph judgment.”

By contrast, the appeal court judgment explains in-depth not only why the tort is unjustified in this case, but also how updates to Ontario law should be made.

“Common law change is evolutionary in nature: it proceeds slowly and incrementally rather than quickly and dramatically … significant change may best be left to the legislature,” court documents state.

“The court can create a new tort anytime it considers it appropriate to do so. But that is not how the common law works, nor is it the way the common law should work,” the judgment reads.

“Courts are extremely reluctant to recognize new torts,” says De Vellis.

“When a legislature passes a new law, they have committees that have studied the legal or economic consequences and implications of the legislation, while a court is not really in a position to determine that.”

He says there have been a few torts developed in recent years, like the one that deals with the invasion of privacy.

De Vellis believes the OCA has “left the door open” for the tort of harassment to be introduced in the future, noting that the judgment states, “... while we do not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts, we conclude that [the plaintiff] has presented no compelling reason to recognize a new tort of harassment in this case.”

“I don’t think we’ve heard the last on this issue,” he says. “I think the law will eventually evolve in some way to recognize a form of harassment tort, especially with the societal changes we are seeing.”

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