Can I sue for harassment in Ontario?
Answer: Until recently, the short answer was “no.” However, the Ontario courts have left the door open for future cases, and a decision in Alberta may lead our courts to take another look.
In 2019, the Court of Appeal for Ontario rejected the existence of a tort (basically a legal wrong that you can sue for) of harassment in Ontario. The court found that this tort did not historically exist in Ontario law and that there was no basis to create it because, the court reasoned, other torts already exist that can cover harassing conduct.
However, the Ontario court left the door open for future cases, saying that “We do not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts.”
Last year, the Alberta Court of King’s Bench reviewed the law in this area and decided not to follow the Ontario court’s decision. Instead, the Alberta court decided that a tort of harassment should be recognized to fill a gap in the law.
It may be that the Alberta Court of Appeal will weigh in on this question. However, for the time being, litigants in Ontario looking to sue in court for harassment have some judicial support for getting Ontario judges to take another look at the tort of harassment.
Of course, advancing a novel legal claim is difficult and costly — especially if you are unsuccessful and the court orders you to pay a portion of the other party’s legal costs.
Employees in Ontario also have other options for addressing workplace harassment. Unionized employees can ask their unions to grieve incidents of harassment, and any employee can bring a case of harassment based on human rights grounds (e.g., sex, race, disability) to the Human Rights Tribunal of Ontario. And, in some circumstances, harassment can lead to constructive dismissal that the employee can sue for in court.
This article was originally published by The Hamilton Spectator.
