In a previous article, I wrote about the development of the tort of harassment. A link to this article can be found here. However, earlier this year, the Court of Appeal reversed the lower court’s decision and concluded that there is no basis at this time to recognize a new cause of action based on harassment.
The Court of Appeal began its analysis by pointing out that change in common law or case law is evolutionary in nature, proceeding slowly and incrementally rather than quickly and dramatically. The Court of Appeal also pointed out that significant change may be best left to the legislature, rather than the courts. The Court of Appeal noted that, over the last decade, changes in common law occurred as a result of principles that already existed in Canadian common law, and in response to societal needs.
The Court of Appeal examined the relevant Canadian case law and concluded that the cases did not confirm the existence of a tort of harassment, nor its underlying elements or principles. In fact, the case law confirmed that the law on harassment remained unclear. Moreover, the Court of Appeal was not provided with any foreign judicial authority that would support the recognition of the tort of harassment, nor any academic authority or compelling policy rationale in support of one.
Instead, the Court of Appeal reiterated the existing cause of action for intentional infliction of emotional suffering as being sufficient to address situations of harassment. The test for this cause of action requires the plaintiff to demonstrate that the conduct of the defendant:
- Was flagrant and outrageous;
- Was calculated to produce harm; and
- Resulted in visible and provable illness.
The Court of Appeal was careful not to preclude the development of a tort of harassment in the future. Simply put, the court clarified that the existing case law had not yet developed to the point where the underlying elements and principles were already present in Canadian case law.
This article is intended only to provide general information and does not constitute legal advice. Should you require advice specific to your situation, please feel free to contact me to discuss the matter further.