The most widely read magazine for Canadian lawyers
Issue link: https://digital.canadianlawyermag.com/i/1507414
42 www.canadianlawyermag.com existing torts (defamation, assault, nuisance, and intimidation) fall short of addressing the harm caused by this behaviour. Recognition of this tort "opens the door" to a new avenue of legal recourse for victims of workplace harassment, Levitt says. "We're going to be seeing a lot of cases, going forward, where people are going to sue for harassment, either by itself or as part of larger claims against employers. And it's essentially giving another weapon to employees who feel they've been harassed." However, Levitt says the new tort of harassment also requires a complaint to pass a four-part test. Justice Feasby wrote that recognizing the tort of harassment in the terms described "provides a doctrinal foundation for and structure to what Alberta courts have been doing for many years in the context of restraining orders. " Taking this step does not create indeterminate liability nor does it open floodgates; to the contrary, it defines the tort of harassment in a measured way that will guide courts in the future." There are existing routes for getting compensation for harassment in an employment setting. Claimants could bring claims of harassment under human rights legislation or a workers' compensation claim in cases where harassment occurs during employment and leads to a diagnosable mental injury or illness. Unlike complaints under human rights legislation, however, the new tort doesn't have to relate to a protected ground, such as race or religion. Justice Feasby also made it clear that harassing actions must happen repeatedly. This differs from human rights decisions in Alberta that have recognized a single incidence of harassment may be severe enough to be found discriminatory. Common law has no requirement that the harassment occurs during employment, nor that the harassment lead to mental injury or illness, unlike the route to compensation through a workers' compensation claim. But Osler's Rempel notes that any medical evidence of negative effects from harassment "fits neatly" under step four of the harassment LEGAL REPORT EMPLOYMENT but certainly, the argument for the tort of harassment has been established, and the groundwork has been laid." Pavlic's associate, Arooj Shah, notes that "the recognition of new tort is pretty rare" because if there are ways to compensate someone without creating a new tort, courts will typically use them. "The facts, in this case, are pretty unique, so the judge felt the need to adequately compensate for the harm the plaintiff suffered." Levitt says he certainly took note of the Alberta decision and how it could apply to many situations he typically deals with. He also suspects that judges outside of Alberta, while not bound by Johnston, will refer to it and rely on it in their own decisions, "thereby establishing harassment for the basis of a lawsuit in short order." Indeed, Ontario courts have recognized "online harassment" as a separate tort since 2021. Levitt points out that Justice Feasby in Alberta noted in his decision that there is no difference between the two situations. Justice Feasby considered the Ontario approach in his decision and found that the tort for online harassment, contingent on it being online, "makes no sense," Levitt says, as it provided no remedy for harassment that occurred in person or otherwise happened offline. The Alberta decision also considered sev- eral factors favouring the creation of a harass- ment tort. They include the fact that harass- ment is already a crime under the Criminal Code; courts routinely issue restraining orders to protect victims of harassment; and "The judge … did an excellent job analyzing the existing torts that were out there and gave a good rationale for this additional tort" Walter Pavlic, MLT Aikins Sources: 2016 General Social Survey on Canadians at Work and Home; Statistics Canada: "Insights on Canadian Society: Harassment in Canadian Workplaces" (2018) by Darcy Hango and Melissa Moyser • 19% of women and 13% of men reported harassment at the workplace – verbal abuse, humiliating behaviour, threats, violence, and unwanted sexual attention • Verbal abuse was the most common form of harassment – 13% of women and 10% of men • The next most common form of harassment was humiliating behaviour – reported by 6% of women and 5% of men • Women were more likely to report sexual harassment at work (4% versus 1% of men) • About 3% of men and women said they had experienced threats in the workplace HARASSMENT IN THE WORKPLACE