Documentation:Torts/Harassment

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TORT LAW
CASEBOOK
Introduction
Dignitary Torts
Defamation • Discrimination • Harassment • Intentional infliction of mental suffering • Invasion of privacy • Trespass to the person
Property Torts
Interference with goods • Interference with land • Non-natural use of land • Private nuisance • Public nuisance
Negligence Tort
Duty of care • Breach of duty • Damage • Causation • Remoteness
Negligence Categories
Employment • Environmental pollution • Harmful products • Hosting patrons and guests • Infliction of mental injury • Misrepresentation • Occupation of premises • Professional services • Public authorities • Pure economic loss • Relational economic loss • Rescuers • Shoddy goods or structures • Treatment of indigenous children • Unborn children
Dishonesty & Abuse of Position Torts
Abuse of process • Breach of confidence • Conspiracy • Fraud • Inducing breach of contract • Injurious falsehood • Intimidation • Malicious prosecution • Misfeasance in public office • Passing off • Spoliation • Unlawful interference with economic interests
Strict Liability
Keeping dangerous animals • Non-natural use of land • Ultrahazardous activities • Vicarious liability
Defences
Apportionment of liability • Consent • Defamation defences • Defence of property • Denials • Excuses • Illegality • Legal authority • Limitation • Necessity • Self-defence
Remedies
Apologies • Damages • Injunctions • Insurance • Legal costs • Mitigation • Proprietary
Tort Law & Legal Systems
Charter values • Class actions • Concurrent actions • Constitutional torts • Indigenous dispute resolution • No-fault compensation schemes
Tort Theory
Instrumental theories • Constructive theories • Critical theories • Reflexive theories
Study Resources
1L strategy • Answer exercises • Quizzes • Beswick's course site • Opening Up Tort Law Project
Index
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Harassment
Harassment is a long-recognized legal concept that spans criminal and tort law.[1] However, while criminal harassment is established by section 264(1) of the Criminal Code,[2] tort liability for harassment has not reached the same level of consensus.[3]

Tort liability for harassment in Canada is characterized by a lack of conformity across the provinces. The existence of the tort of harassment has been considered “doubtful on the authorities” in British Columbia[4] and has been rejected by the Ontario Court of Appeal.[5] A trial-level judgment of the Ontario Superior Court has recognized a tort of internet harassment,[6] a distinction that a judge of the Alberta King's Bench said "makes no sense", in a judgment recognizing a harassment tort in Alberta.[7]

The questionable tort of harassment in Canada

British Columbia

In Lu v. Shen, the Supreme Court of British Columbia did not recognize the existence of a common law tort of harassment.[4] This sentiment was reiterated in another more recent case, with the court citing to Merrifield v. Canada and stating that "[t]here is no recognized tort of harassment."[8] The British Columbia Supreme Court in Gokey v. Usher stated that it was not necessary to "determine if the tort of harassment exists in British Columbia" on the facts of that case.[9]

Ontario

Photo of coat of Arms Royal Canadian Mounted Police
Coat of Arms of the Royal Canadian Mounted Police

In Ontario, a tort of harassment was recognized at first instance in Merrifield v. Canada, but rejected on appeal.[10] In this case, the plaintiff, Peter Merrifield, was a long-time employee of the Royal Canadian Mounted Police (RCMP) who claimed he was harassed and bullied by the managerial team from 2005 to 2012.[11] The trial judge had recognized the tort of harassment upon the satisfaction of four elements.[12]

Rejected elements of harassment as proposed in Merrifield v. Canada[10][12]
1. Was the conduct of the defendants toward [the plaintiff] outrageous?
2. Did the defendants intend to cause emotional stress or did they have a reckless disregard for causing [the plaintiff] to suffer from emotional stress?
3. Did [the plaintiff] suffer from severe or extreme emotional distress?
4. Was the outrageous conduct of the defendants the actual and proximate cause of the emotional distress?

While the trial judge found in favour of the plaintiff,[13] the Ontario Court of Appeal overturned that decision, stating that the tort of intentional infliction of mental suffering was a sufficient remedy in the case and that there was a lack of persuasive foreign jurisprudence, academic writing, or public policy rationale to recognize this tort.[5]

The topic was nevertheless revisited by the Ontario Superior Court in the 2021 case of Caplan v. Atas.[14] The defendant, Atas, had conducted an online campaign of spreading malicious lies about people Atas held grudges against as well as their families.[15][16] This conduct went on “unchecked” for many years causing significant harm to the victims and their families.[17] The court distinguished the facts of this case from Merrifield v. Canada in stating that IIMS was ill-equipped to deal with internet harassment as it addresses different circumstances and the test does not entail “persistent and repetitive” conduct.[18]

So far the internet harassment tort has only been recognized at the trial court level.[7] Because of the Ontario Court of Appeal's previous refusal to recognize a tort of harassment, it is unclear if this tort will persevere. The elements were expressed as follows:

Elements of internet harassment[6]
1. Defendant maliciously or recklessly;
2. [E]ngages in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance;
3. [W]ith the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and
4. [T]he plaintiff suffers such harm.

More recently in Ahluwalia v. Ahluwalia, the Ontario Court of Appeal, albeit addressing a separate issue, considered the developing case law on harassment in tort law.[19] The Court reiterated the criteria for recognizing a new tort as set out by the Supreme Court of Canada in Nevsun Resources Ltd. v. Araya:[20]

Three clear rules for when the courts will not recognize a new nominate tort have emerged: (1) The courts will not recognize a new tort where there are adequate alternative remedies ...; (2) the courts will not recognize a new tort that does not reflect and address a wrong visited by one person upon another ...; and (3) the courts will not recognize a new tort where the change wrought upon the legal system would be indeterminate or substantial ...

Alberta

In Alberta Health Services v. Johnston,[7] the Court of King's Bench of Alberta upheld a claim under the tort of harassment. Justice Feasby stated that a tort of harassment "fills a gap" in the law, which is not always adequately addressed by other torts of defamation, invasion of privacy, or IIMS.[21]

However, Notice of Appeal has been filed in this case,[22] and given the hesitancy of courts in Ontario and British Columbia to recognize a tort of harassment, it is unclear if the recognition of this tort in Alberta will remain good law.

Elements of harassment per Alberta Health Services v. Johnston[23]
1. [The defendant] engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through or other means;
2. [T]hat [they] knew or ought to have known was unwelcome;
3. [W]hich 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
4. [C]aused harm.

Problems with recognizing a tort of harassment

In the news
Atas' online tirade

The New York Times published an article "A Vast Web of Vengeance" detailing Guy Babcock's experience with online harassment, which culminated false online posts that branded him as a fraudster, thief, and pedophile. [24] The vicious online posts also extended to his wife, sister, brother-in-law, cousin, aunt, and nephew. [24] Babcock later found out that Nadire Atas, the defendant in Caplan v. Atas,[14] was behind the posts, holding a long-term grudge that came into online fruition.[24]

Harrassment and COVID-19

In a highly politicized case,[25] Alberta Health Services successfully argued that social media personality, Kevin Johnston, harassed the public health inspector.[26] This decision arose after multiple online broadcasts, posts, and social media comments targeting the inspector for COVID-19 health measures.[26] Comments included Johnston stating "I intend to make this woman’s life miserable, I intend to destroy this woman’s life like she has destroyed the lives of Calgarians" and later accusing her of being a terrorist.[27]

Institutional role of the courts and incremental development of the common law

One of the problems with recognizing a tort of harassment is the question of whether it is appropriate for the courts to recognize a novel tort or if such a significant change to the law is more appropriately left for the legislatures.[19]

In Merrifield v. Canada, the Court cited Justice McLachlin's reasons as to why there may be "judicial reluctance to dramatically recast established rules of law":[28]

The court may not be in the best position to assess the deficiencies of the existing law, much less problems which may be associated with the changes it might make. The court has before it a single case; major changes in the law should be predicated on a wider view of how the rule will operate in the broad generality of cases. Moreover, the court may not be in a position to appreciate fully the economic and policy issues underlying the choice it is asked to make. Major changes to the law often involve devising subsidiary rules and procedures relevant to their implementation, a task which is better accomplished through consultation between courts and practitioners than by judicial decree. Finally, and perhaps most importantly, there is the long-established principle that in a constitutional democracy it is the legislature, as the elected branch of government, which should assume the major responsibility for law reform.

The Court in Merrifield v. Canada emphasized the need for incremental change in the law, citing Justice McLachlin in Watkins v. Olafson:[29]

Generally speaking, the judiciary is bound to apply the rules of law found in the legislation and in the precedents. Over time, the law in any given area may change; but the process of change is a slow and incremental one, based largely on the mechanism of extending an existing principle to new circumstances. While it may be that some judges are more activist than others, the courts have generally declined to introduce major and far-reaching changes in the rules hitherto accepted as governing the situation before them.

Availability of alternative legal avenues

The intertwinement of the tort of IIMS and harassment seems to have contributed to a lack of willingness among the judiciary to recognize a novel tort of harassment.[30] Since both concepts deal with harm resulting from non-physical acts (such as threats, misstatements, and insults), many claims of harassment could be addressed by the well-established tort of IIMS.[30] The availability of IIMS as a remedy as emphasized by the court in Merrifield distinguishes it from the novel invasion of privacy tort recognized in Jones v. Tsige, where the Ontario Court of Appeal considered that "the facts ... cry out for a remedy".[31]

Freedom of speech

A tort of harassment engages the countervailing value of freedom of speech.[32] Freedom of speech aims to protect those expressing themselves within the "marketplace of ideas", and courts are wary of developing tort law in a way that may act as a tool to undermine such protections.[32]

Technology

In both Pong Seong v. Chan and Caplan v. Atas, the courts considered the impact of technological advancement on the plausibility of harassment. In Caplan v. Atas, the Court noted the capacity of anonymous online interactions to embolden outrageous conduct. Though freedom of speech is a central value of Canadian society, the internet has caused "disarray" between traditional approaches to harassment and constitutionally protected rights.[33]

Establishing adequate remedies

Despite the legal recourse faced by the defendant in Caplan v. Atas, her financial, social, and employment status made accountability for online harassment futile.[34] Further, a New York Times article detailing Atas' conduct notes that even upon request many online platforms failed to remove her abusive posts.[24]

Discussion questions

Recognizing new torts: IIMS, invasion of privacy, and harassment

Stereo Decisis "The new tort trend?"

In "The New Tort Trend?", podcast hosts Professor Hilary Young and Robert Danay talk about the legal trends regarding the recognition of new common law torts.[35]

McGill Law Journal "An end to cyberstalking? Caplan v. Atas and the new tort of online harassment"

The McGill Law Journal details the Ontario Superior Court decision to recognize the tort of online Harassment in Caplan v. Atas[6] and discusses its effectiveness with Iris Fischer.[36]

  • Courts have grappled with the question as to whether harassment should be considered part of the tort of intentional infliction of mental suffering or whether it should be an entirely separate tort. Which approach do you agree with and why?
  • In Merrifield v. Canada, the Ontario Court of Appeal distinguished the recognition of the tort of harassment from the recognition of the tort of invasion of privacy, noting that the latter had support from academic scholarship, attitudes and acceptance in the legal community, compelling policy rationale, as well as international jurisprudence.[37] Do you think the court's reasoning for recognizing the tort for invasion of privacy can justify the development of a new tort of harassment?
  • While the Court of Appeal in Merrifield v. Canada rejected the tort of harassment, the Court in Caplan v. Atas recognized the tort of internet harassment, stating that the facts of the case were "very different" from Merrifield v. Canada and that gaps in the existing law necessitated a legal remedy.[38] Do you agree? Why or why not?

Scope of the tort of internet harassment

  • The Court in Caplan v. Atas outlined the complicated interplay of the importance of freedom of speech with the need to limit freedoms to protect the dignity of individuals.[39] In navigating that interplay, the recognition of the tort adopts a "stringent test" which requires the conduct to be "outrageous" in a manner that goes "beyond all possible bounds of decency and tolerance".[40] Do you think that this test is sufficient to avoid undermining constitutionally protected rights to freedom of speech?
  • The decision in Caplan v. Atas opens up legal remedies for those who can satisfy the elements of the test. While the tort appears to be available to individuals suffering from internet harassment, there has yet to be a decision outlining whether this new tort can be relied upon by corporations. Do you think a corporation that suffers online harassment similar to that suffered by the victims in Caplan v. Atas[41] should be entitled to the aforementioned legal remedy? Why or why not?
  • Given that the contact between the defendant and plaintiff in Lu v. Shen[42] involved elements of internet communications, do you think the defendant's conduct would have satisfied the threshold of "outrageousness" outlined in Caplan v. Atas[6]? Could a tort of internet harassment have been adopted in British Columbia in this case?
  1. ↑ Lee, Martin (2001). "The Need for a Tort of Harassment". Southern Cross University Law Review. 26 (3): 2.
  2. ↑ Criminal Code, RSC 1985, c C-46, s 264(1).
  3. ↑ See e.g. Merrifield v. Canada (AG), 2019 ONCA 205 (§5.2.2).
  4. ↑ 4.0 4.1 Lu v. Shen, 2020 BCSC 490 (§5.2.3) at para 96.
  5. ↑ 5.0 5.1 Merrifield v. Canada (AG), 2019 ONCA 205 (§5.2.2) at para 40.
  6. ↑ 6.0 6.1 6.2 6.3 Caplan v. Atas, 2021 ONSC 670 (§5.2.4) at para 171.
  7. ↑ 7.0 7.1 7.2 Alberta Health Services v. Johnston, 2023 ABKB 209 at para 80.
  8. ↑ Ilic v. British Columbia (Justice), 2023 BCSC 167 at para 196.
  9. ↑ Gokey v. Usher, 2023 BCSC 1312 (§5.2.6) at para 211.
  10. ↑ 10.0 10.1 Merrifield v. Canada (AG), 2019 ONCA 205 (§5.2.2).
  11. ↑ Merrifield v. Canada (AG), 2019 ONCA 205 (§5.2.2) at para 1.
  12. ↑ 12.0 12.1 Merrifield v. The Attorney General, 2017 ONSC 1333 at para 719.
  13. ↑ Merrifield v. The Attorney General, 2017 ONSC 1333 at para 889.
  14. ↑ 14.0 14.1 Caplan v. Atas, 2021 ONSC 670 (§5.2.4).
  15. ↑ Hill, Kashmir (February 10th, 2021). "Woman Accused of Defaming Dozens Online Is Arrested". New York Times. Check date values in: |date= (help)
  16. ↑ Caplan v. Atas, 2021 ONSC 670 (§5.2.4) at para 1.
  17. ↑ Caplan v. Atas, 2021 ONSC 670 (§5.2.4) at para 6.
  18. ↑ Caplan v. Atas, 2021 ONSC 670 (§5.2.4) at para 169.
  19. ↑ 19.0 19.1 Ahluwalia v. Ahluwalia, 2023 ONCA 476 (§5.2.5).
  20. ↑ Ahluwalia v. Ahluwalia, 2023 ONCA 476 (§5.2.5) at para 56, citing Nevsun Resources Ltd. v. Araya, 2020 SCC 5 at para 237.
  21. ↑ Alberta Health Services v. Johnston, 2023 ABKB 209 at paras 99–100.
  22. ↑ McGrath, Dalton W; O'Brien, Michael; Sahlu, Robel (8 August 2023). "Alberta's New Tort of Harassment". Blakes.
  23. ↑ Alberta Health Services v. Johnston, 2023 ABKB 209 at para 107.
  24. ↑ 24.0 24.1 24.2 24.3 Hill, Kashmir (30 January 2021) "A Vast Web of Vengeance" The New York Times.
  25. ↑ Alberta Health Services v. Johnston, 2023 ABKB 209.
  26. ↑ 26.0 26.1 Toy, Adam (April 13, 2023) "Kevin J. Johnston to pay $650K for defaming, harassing AHS inspector", Global News.
  27. ↑ Alberta Health Services v. Johnston, 2023 ABKB 209 at para 20.
  28. ↑ Merrifield v. Canada (AG), 2019 ONCA 205 (§5.2.2) at para 21, citing Watkins v. Olafson, 1989 CanLII 36 (SCC).
  29. ↑ Merrifield v. Canada (AG), 2019 ONCA 205 (§5.2.2) at para 20, citing Watkins v. Olafson, 1989 CanLII 36 (SCC).
  30. ↑ 30.0 30.1 Merrifield v. Canada (AG), 2019 ONCA 205 (§5.2.2) at paras 42–48.
  31. ↑ Jones v. Tsige, 2012 ONCA 32 (§4.1.1.2) at para 41.
  32. ↑ 32.0 32.1 Caplan v. Atas, 2021 ONSC 670 (§5.2.4) at para 6.
  33. ↑ McGill Law Review "An End to Cyberstalking? Caplan v. Atas and the New Tort of Online Harassment" (Febuary 2022), https://lawjournal.mcgill.ca/article/cyberstalking-caplan-v-atas-tort-online-harassment/
  34. ↑ Caplan v. Atas, 2021 ONSC 670 (§5.2.4) at paras 93–95.
  35. ↑ Stereo Decisis Podcast, “The New Tort Trend?” (Mar 31, 2022)
  36. ↑ McGill Law Journal Podcast, “An End to Cyberstalking? Caplan v. Atas and the New Tort of Online Harassment” (Feb 9, 2022)
  37. ↑ See e.g. Merrifield v. Canada (AG), 2019 ONCA 205 (§5.2.2) at para 25.
  38. ↑ Merrifield v. Canada (AG), 2019 ONCA 205 (§5.2.2) at para 174.
  39. ↑ Caplan v. Atas, 2021 ONSC 670 (§5.2.4) at para 4.
  40. ↑ Caplan v. Atas, 2021 ONSC 670 (§5.2.4) at paras 171–72.
  41. ↑ Caplan v. Atas, 2021 ONSC 670 (§5.2.4).
  42. ↑ Lu v. Shen, 2020 BCSC 490 (§5.2.3).


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