Tort of Internet Harassment
As employment lawyers, we regularly assist employees with workplace harassment issues. Broadly speaking, Ontario’s Occupational Health and Safety Act (“OHSA“) defines it as: “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome”. Put simply, workplace harassment refers to any unwanted comments or behaviour that is offensive, demeaning, humiliating or hurtful, and can include:
- unwelcome comments or jokes based on a person’s age, disability, sex, religion or other protected human rights ground
- threats
- bullying
- unwelcome physical contact/violence
Employers in Ontario are required to maintain and implement anti-harassment polices that are in their workplace, and to conduct a fair, independent investigation of any workplace harassment complaints. In addition, following an investigation, employers must report any corrective actions that will be provided to the worker who alleged workplace harassment, as well as to the alleged harasser (if the alleged harasser is a worker of the same employer).
However, Workplace Harassment is Not…
Ontario law makes it clear that “reasonable action taken by an employer or supervisor relating to the management and direction of workers or the workplace.” In other words, workplace harassment arises when comments or behaviour “cross the line” from normal and appropriate to unacceptable and inappropriate. In some cases, severe workplace harassment resulting in a poisoned work environment could give rise for an employee to claim a constructive dismissal and seek a financial severance package from their employer.
As described above, the law sets an objective standard established to prove workplace harassment. Therefore, this will typically mean that reasonable directions from a manager supervisor’s normal work function, including changes in work assignments, scheduling, job assessment and evaluation, workplace inspections, implementation of health and safety measures, and disciplinary action, would not necessarily amount to unlawful workplace harassment.
However, if these actions are not made reasonably and fairly, they could constitute workplace harassment (e.g., an employer decides to not schedule a worker for their shift only because of his disability, or sexual orientation).
Differences of opinion or minor disagreements between co-workers would also not generally be considered workplace harassment.
Workplace Harassment Has No Physical Boundaries
It is well known that workplace harassment does not simply end at work, and is by no means confined to the workplace. Quite often, workplace harassment continues outside the workplace between co-workers, and spills into an employee’s personal life, often through online (cyber) bullying. The courts in Ontario have interpreted “in the workplace” broadly to include comment or conduct that has work-related consequences, regardless of where it occurred.
As a result, activities, behaviour and incidents that take place outside of the traditional office environment or outside normal business hours, can still amount to “workplace” harassment. The key is establish a “nexus” (link) between the workplace and employment. So, for example, an employer may be held responsible for workplace harassment incidents that take place during business trips, company parties or other company-related functions.
Tort of Internet Harassment
The adoption by many employers of remote work arrangements (especially during the COVID-19 pandemic) has greatly expanded workplace boundaries. As the use of email, WhatsApp, Zoom and other communication platforms allowed for greater interaction among co-workers in the digital sphere, it has also provided another means by which workplace harassment takes place. It is not uncommon for workplace bullying to occur with co-workers sending unwanted, uninvited messages or content over a digital medium, such as explicit texts or emails, inappropriate photos, links, or videos.
Increasingly, workplace harassment is taking place through electronic media (such as blogs, email, text messages, or social media). Since forms of electronic communication are used for conducting work, they form an extension of the workplace and an employer is generally responsible for workplace harassment that occurs electronically.
Given the reality that online harassment is a prevalent issue in society (including workplaces), a recent Ontario court decision in Caplan v. Atas, 2021 ONSC 670 (Caplan v. Atas), recognized a new common law Tort of Internet Harassment, which may provide recourse and remedies for employers (and others) who face harassment and bullying on the internet.
What Happened in the Caplan v. Atas Case?
The plaintiff, Caplan, sued the defendant, Atas, for online defamation and harassment. Over a span of several years, Atas launched a campaign of malicious falsehoods as retribution for persons she held a grudge against (as well as their friends, family, neighbours and colleagues). She used the internet to disseminate various false and damaging accusations, including of negligence, incompetence, fraud, and pedophilia. Atas used a number of creative means, including posting altered newspaper articles online, distributing falsified emails to her victims’ employers, and handing out letters to the plaintiffs’ neighbours containing defamatory statements.
After trial, the court concluded that the torts of defamation, intrusion upon seclusion (invasion of privacy), and intentional infliction of mental suffering were all insufficient to address all of the harms of the disturbing pattern of online harassment. As a result, the court found it was important to create new cause of action and provide recourse for individuals who suffer harm arising from this type of misconduct.
The Tort of Internet Harassment
The court established the following test for the new Tort of Internet Harassment:
- The defendant maliciously or recklessly engaged in communications so outrageous in character, duration and extreme in degree, so as to go beyond all possible bounds of decency and tolerance;
- The defendant acted with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and
- The plaintiff suffered such harm.
However, the court was quick to set a very high standard for this new claim to apply, by emphasizing that the Tort of Internet Harassment is meant only for “the most serious and persistent of harassing conduct that rises to the level where the law should respond to it.” Therefore, it is not meant to cover conduct that is “intended to annoy another person.”
Contact Employment Lawyer
If you are an employee whose employment experiencing workplace harassment, or an employer who needs help in responding to workplace harassment issues, call Bune Law at 647-822-5492 for guidance from an experienced employment lawyer. While not all comments or behaviour constitute workplace harassment, speaking with an experienced employment lawyer will help you decide if your workplace situation requires legal assistance, and what you should do to address it. Call Bune Law for a consultation to discuss your case.
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