For Crying Out for a Remedy

Lawyers tend to get excited when the courts create a new tort, and for good reason. The judiciary is reluctant to instigate such reform to the common law absent compelling facts, and a strong societal need for them to do so.

In Seneca College v. Bhadauria, the Court of Appeal found that a cause of action existed for the tort of discrimination, on the basis that the Ontario Human Rights Code,

18 I regard the preamble to the Code as evidencing what is now, and probably has been for some considerable time, the public policy of this Province respecting fundamental human rights. If we accept that “every person is free and equal in dignity and rights without regard to race, creed, colour, sex, marital status, nationality, ancestry or place of origin”, as we do, then it is appropriate that these rights receive the full protection of the common law. The plaintiff has a right not to be discriminated against because of her ethnic origin and alleges that she has been injured in the exercise or enjoyment of it. If she can establish that, then the common law must, on the principle of Ashby v. White et al., supra, afford her a remedy.

19 I do not regard the Code as in any way impeding the appropriate development of the common law in this important area. While the fundamental human right we are concerned with is recognized by the Code, it was not created by it. Nor does the Code, in my view, contain any expression of legislative intention to exclude the common law remedy. Rather the reverse since s. 14a [enacted 1974, c. 73, s. 5] appears to make the appointment of a board of inquiry to look into a complaint made under the Code a matter of ministerial discretion.

On appeal, the Supreme Court of Canada reversed this decision, stating,

The view taken by the Ontario Court of Appeal is a bold one and may be commended as an attempt to advance the common law. In my opinion, however, this is foreclosed by the legislative initiative which overtook the existing common law in Ontario and established a different regime which does not exclude the courts but rather makes them part of the enforcement machinery under the Code.

For the foregoing reasons, I would hold that not only does the Code foreclose any civil action based directly upon a breach thereof but it also excludes any common law action based on an invocation of the public policy expressed in the Code. The Code itself has laid out the procedures for vindication of that public policy, procedures which the plaintiff respondent did not see fit to use.

By that time, another case had already emerged in Ontario with Aziz v. Adamson, [1979] O.J. No. 278, also supporting a new tort of discrimination. Rather than seeing the courts as supplanting legislative authority, it was perceived as the courts working in cooperation with it,

6 By enacting these principles in the preamble of the Code, the Legislature of Ontario has chosen to underscore its commitment to equal rights for all of our citizens and its opposition to all forms of discrimination. The Court of Appeal made it clear, however, that this new tort action for discrimination did not depend for its life on The Ontario Human Rights Code, but rather was based on the common law. The public policy against racial and other discrimination existed in Ontario before the enactment of the Human Rights Code and was not created by the Code. The Code merely recognizes that pre-existing policy in its preamble and then establishes an agency and procedures that seek to eliminate or reduce the number of incidents of discrimination in this province. The courts of Ontario should cooperate with the Legislature, where possible, in promoting the public policy enshrined in The Ontario Human Rights Code. I, therefore, find that the plaintiff’s statement of claim does allege facts which, if proved, could support a cause of action in tort for discrimination.

…

8 The enforcement machinery set out in the Code is not exclusive, as indicated by Madam Justice Wilson. A person who feels aggrieved is not forced to complain to the Ontario Human Rights Commission; a person may choose to seek redress in the courts. Although most victims would certainly prefer to proceed before the Commission because there are no legal costs to the complainant, they are free to avail themselves of a civil action in the courts, if they are willing to risk the potential costs involved in such action.

Of course the Court’s conclusion that the Code provided exclusive jurisdiction to the Tribunal for human rights put an end to this development, but only until the advent of the Charter. The Court stated in Vancouver (City) v. Ward,

[4] …damages may be awarded for Charter breach under s. 24(1) where appropriate and just. The first step in the inquiry is to establish that a Charter right has been breached. The second step is to show why damages are a just and appropriate remedy, having regard to whether they would fulfill one or more of the related functions of compensation, vindication of the right, and/or deterrence of future breaches. At the third step, the state has the opportunity to demonstrate, if it can, that countervailing factors defeat the functional considerations that support a damage award and render damages inappropriate or unjust. The final step is to assess the quantum of the damages.

Although s. 46.2 of the Code still provides exclusive jurisdiction for civil actions based solely on human right infringements, the courts have also allowed for claims in discrimination in wrongful dismissal claims, as long as there are other grounds for the claim in addition to discrimination.

The Court in Honda Canada Inc. v. Keays had the opportunity to reconsider its previous position on the matter, but refused to do so at para 67, as there was insufficient facts to make out a case for discrimination. Instead, it can operate as an “independent wrong” that can serve as a basis for punitive damages. As it stands then, no independent common law tort of discrimination has ever emerged in Canada.

However, the definition of what constitutes discrimination has also evolved over time, with sexual harassment being recognized as a form of discrimination in Re Bell and Korczak, [1980] O.L.A.A. No. 85, where the Chair stated,

6 Subject to the exception provided in s. 4(6) [rep. & sub. 1974, c. 73, s. 2], discrimination based on sex is prohibited by The Code. Thus, the paying of a female person less than a male person for the same job is prohibited, or dismissing an employee on the basis of sex is also prohibited. But what about sexual harassment? Clearly a person who is disadvantaged because of her sex is being discriminated against in her employment when employer conduct denies her financial rewards because of her sex, or exacts some form of sexual compliance to improve or maintain her existing benefits. The evil to be remedied is the utilization of economic power or authority so as to restrict a woman’s guaranteed and equal access to the work place, and all of its benefits, free from extraneous pressures having to do with the mere fact that she is a woman. Where a woman’s equal access is denied or when terms and conditions differ when compared to male employees, the woman is being discriminated against.

7 The forms of prohibited conduct that, in my view, are discriminatory run the gamut from overt gender-based activity, such as coerced intercourse to unsolicited physical contact to persistent propositions to more subtle conduct such as gender-based insults and taunting, which may reasonably be perceived to create a negative psychological and emotional work environment. There is no reason why the law, which reaches into the work place so as to protect the work environment from physical or chemical pollution or extremes of temperature, ought not to protect employees as well from negative, psychological and mental effects where adverse and gender-directed conduct emanating from a management hierarchy may reasonably be construed to be a condition of employment.
[emphasis added]

This approach was ultimately affirmed by the Court in Janzen v. Platy Enterprises Ltd., where the Court stated,

Common to all of these descriptions of sexual harassment is the concept of using a position of power to import sexual requirements into the workplace thereby negatively altering the working conditions of employees who are forced to contend with sexual demands.

…

The sexual harassment the appellants suffered fits the definition of sex discrimination offered earlier: “practices or attitudes which have the effect of limiting the conditions of employment of, or the employment opportunities available to, employees on the basis of a characteristic related to gender”.

In light of this context, the discriminatory conduct of sexual harassment may not create an independent actionable tort, but given that it is often advanced in the workplace, the courts can and often assume jurisdiction over it. Discriminatory conduct in this context have indeed found their way into the courts, given the pervasive nature of the issue in Canada. However, Gillian Demeyere still distinguishes the two in the Queen’s Law Journal on the following grounds,

 First, the right protected by the legislation is gender-specific, in the sense that the wrong is understood to be denial of equal treatment for a victim on the basis of her gender. Second, the right protected by the legislation is employment-specific; it seeks to secure equal treatment in employment, and sexual harassment is understood as a breach of the legislation because it has the effect of denying the victim equal treatment in her employment. Finally, despite the consistent characterization of human rights legislation as remedial in nature, it does not provide a right to full compensation for all the losses and harms that result from the sexual harasser’s actions. If it did, it would neither impose caps on damages for mental distress nor have such damages hinge almost entirely on the harasser’s state of mind and the seriousness of his conduct rather than on the extent of the victim’s actual suffering.

She claims the courts should still recognize a new tort of sexual harassment, on the basis that the harm causes is more than just a form of sex-based discrimination. The courts continue to resist this approach, for example, refusing to certify a class action by police officers on the basis of sexual harassment in Rivers v. Waterloo Regional Police Services Board. 

The Court of Appeal in Colistro v. Tbaytel dismissed an appeal for an employee seeking damages for intentional infliction of mental suffering, where the claims included the failure to properly respond to allegations of sexual harassment. The court applied the stringent tests in Prinzo v. Baycrest Centre for Geriatric Care, Piresferreira v. Ayotte, and Boucher v. Wal-Mart Canada Corp, requiring actions that are calculated to produce harm, or foreseeability of the kind of harm that was known to certainly follow.

Leave to appeal of this case to the Supreme Court of Canada was denied, but was combined with another very important case in Merrifield v. Canada (Attorney General), where the Court of Appeal refused to find the existence of a tort of harassment in the context of an RCMP constable alleging harassment and bullying by senior officers, on the basis that the tort of intentional infliction of mental suffering would have been sufficient. They compared it the compelling facts that have given rise to the creation of privacy torts in other contexts, and distinguished it on that basis.

The plaintiff claimed that the new tort must be created given the increased societal recognition of the inherent wrong of harassment, citing Saadati v. Moorhead as a basis for the creation of a new tort. The court disagreed, stating,

That appropriate context may have appeared, with the new decision in Caplan v. Atas. The facts are more convoluted, involving decades of litigation on different subjects with many different parties, but resulting in an aggrieved defendant who undertook an online campaign against several lawyers. They were facts that demanded a remedy,

[2] Cyber-stalking is the perfect pastime for Atas. She can shield her identity. She can disseminate vile messages globally, across multiple unpoliced platforms, forcing her victims to litigate in multiple jurisdictions to amass evidence to implicate her, driving their costs up and delaying the process of justice. Unrestrained by basic tenets of decency, when she is enjoined from attacking named plaintiffs, she moves her focus to their siblings, their children, their other family members and associates, in a widening web of vexatious and harassing behaviour.

I expressed some concerns with the decision in National Magazine, much of it based on the caselaw summarized above,

Omar Ha-Redeye of Fleet Street Law in Toronto also acknowledges that the new tort is a response to the failure of existing statutes to provide adequate protection for these sorts of harms. But he has reservations about the judgment, starting with the judge’s supposition that the defendant suffers from an undiagnosed mental illness.

“I don’t think it’s necessary to comment on her mental health, and take this in a direction that it didn’t need to go into,” says Ha-Redeye. “That being said, the conduct here is over the top, but it’s conduct and behaviour that comes out of the fact that this person has herself been engaged in extensive litigation over numerous years and is targeting lawyers.”

The way the justice system has treated the defendant over the years and contributed to her mental health situation could be a factor, Ha-Redeye adds. He doubts that the tort will have the desired deterrent effect.

“This tort emerging in this particular context isn’t really focusing on where we see the greatest vulnerabilities in society, and the greatest harms as it relates to internet harassment,” says Ha-Redeye.

Ha-Redeye also questions whether the court really couldn’t apply existing tools, under defamation law for instance, to the case. He also believes that the new tort will face scrutiny under anti-SLAPP motions, which may constrain it.

Yet the creation of this tort may hold enormous promise for the recognition of harassment in many other contexts where it has previously been attempted unsuccessfully. The judge in this decision cited the widespread prevalence of online harassment in Canada, demonstrating that the possibility of this tort being used again in the future is high. He concluded that the tort of intentional infliction of mental suffering was inadequate in the circumstances, as it was intended to address very different types of circumstances.

The test for this “tort of harassment in internet communications” was defined as: where the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm.

Although the Ontario court claimed to base this on an American tort cited in an obscure and dated legal publication, it doesn’t appear in American case law. It doesn’t even appear that these types of claims have only successfully been used no more than four times in all of the U.S.

Far more successful for the Americans has been the use of copyright violations for photos originally taken by a victim. The common law still protects property far more vigorously than matters of dignity or human rights.

Unlike the new privacy torts, this tort obviously would not be found in the American Second Restatement of Torts, which was last published in 1979, well before the Internet was commonly used. The reference to American use is far less than the standard the court attempted to rely upon in Merrifield, where the court denied to create this tort stating,

[40] We were not provided with any foreign judicial authority that would support the recognition of a new tort. Nor were we provided with any academic authority or compelling policy rationale for recognizing a new tort and its requisite elements.

Nor is there an absence of alternative legal remedies that would benefit the clients that would justify the recognition of a new tort in this context, as the judge already awarded the plaintiffs the benefits of other heads of damage, such as defamation. The facts alone are what prompted the court to create this new tort, and facts where the power imbalances are markedly different than previous cases where this tort had been claimed.

Nobody should be harassed of course, online or otherwise. The physical separation and online use during a pandemic obviously accentuates the risk of online harassment, and there certain is a need for some form of civil remedy that would address this type of unique conduct. The fact that this was first recognized to benefit aggrieved lawyers at the hands of a destitute party already beat up by the legal system isn’t yet cause to celebrate, as there are far worse victims online every day.