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Tort of Harassment

One potential ground for a civil lawsuit is suing for the tort of harassment. While it is beneficial to understand how such a tort may be defined it is important to remember that currently this tort is not generally recognized as grounds for a civil suit.

The question of whether there is or should be a tort of harassment was considered by the Ontario Court of Appeal. This case dealt with alleged harassment of an employee by his manager among others.

The Court noted that new developments in the common law, such as recognizing a new ground for a civil suit, happen very slowly over time and that elected governments are the only ones who should be able to create new law.

They stated that when a court determines that there is a new common law ground for a law suit they are only confirming what courts over a number of years have recognized, not creating something entirely new. The court concluded that the case law over the years had not evolved to recognize a tort of harassment.

In contrast to this a court in Alberta recently recognized a tort of harassment. In deciding whether to recognize a new tort of harassment the court noted that an important consideration is whether the harm is adequately addressed by other types of torts. On this point the court stated:

As I proceed to consider whether the tort of harassment exists, I am mindful that the existing constellation of torts is a product of the accumulation of judicial decisions over many centuries. For most of this time, many harms experienced by women and members of other marginalized groups were not recognized. Harassment is something that can happen to anyone, but disproportionately affects women and members of other marginalized groups.

The court then decided to recognize the tort of harassment based on these factors:

  • Harassment is recognized as a crime.
  • The government could create a tort of harassment but the fact they have not does not meant that the courts cannot recognize one.
  • Courts regularly grant restraining orders based on someone being harassed.
  • A tort of harassment is needed to fill a gap in law because harassment does not always fall under an already recognized tort.

For the tort of harassment the court found that the behaviour must be repeated communications, threats, insults, stalking, or other harassing behaviour. It can be in-person or through other means. The harasser must have known or should have known the behaviour was unwelcome. The behaviour must also be ...

  • harmful to the person's dignity or
  • something that would cause a reasonable person to fear for their safety or the safety of their loved ones or
  • something that it could be anticipated would cause emotional distress

In addition there must be harm caused by the behaviour.

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The Shift Project is funded by the Department of Justice and delivered by the Public Legal Education Association of Saskatchewan (PLEA).

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