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Harassment and bullying have long existed in society, including in the workplace. Fortunately, and in recent years, there has been a greater recognition in Canadian society of the seriousness of harassment and the damage it causes. Governments at all levels have responded through the expansion of laws aimed at harassment and bullying.

Courts have accordingly responded by both applying and expanding upon existing laws aimed at eradicating harassment and bullying, particularly online. To this end, the Ontario Superior Court of Justice (in Caplan v. Atas) has recently recognized a new form of protection from harassment in internet communications.

While the case has general application, it is relevant to workplaces because employers are responsible for ensuring the safety of employees, including on social media.

Employers that do not dispose of their responsibilities can be held liable for a range of damages, including in relation to bad faith, wrongful dismissal and, potentially, this new law.

The following explores the expansion of the law, particularly in relation to online harassment.

The Disturbing Facts

The court in Caplan v. Atas involved an abuser who had a long history of engaging in online harassment.  This included publishing thousands of anonymous defamatory posts on various platforms over the course of nearly 20 years.

The aggressor was so extreme that the court characterized the behaviour as “sociopathic”. There were as many as 150 victims of “cyber-stalking” and what the court called “systematic campaigns of malicious falsehood to cause emotional and psychological harm”.

The evidence demonstrated that the abuser engaged in what the court described as “systemic campaigns of malicious falsehood” intended to cause emotional and psychological harm.

The court ultimately concluded that the remedies available to victims of harassment were inadequate and that new protection against online harassment was warranted.

How Can I Prove Online Harassment?

Given the concerns discussed above, the court developed a new three-part test to determine when damages are to be awarded for harassment in internet communications. The following must specifically be found to support damages for online harassment:

  1. Evidence that the abuser maliciously or recklessly engaged in communications so outrageous in character, duration, and extreme in degree that it is beyond generally accepted standards of decency and tolerance;
  2. Proof that the abuser intended to cause fear, anxiety, emotional upset or to damage the dignity of the victim; and
  3. That the victim suffered harm.

It is important to note that this additional protection for internet harassment is reserved for the most persistent and serious of harassing online conduct.

Can I Sue My Employer for Online Harassment?

In short, yes. This is because employees are already protected from harassment, including online harassment.

In particular, the Occupational Health and Safety Act sets out the rights and duties for the health and safety of all parties in the workplace. It is important for employers to address any unwanted behaviours early to minimize the potential for workplace harassment to turn into workplace violence.

The Occupational Health and Safety Act sets minimum standards and requirements that employers must abide by when dealing with violence and harassment in the workplace.

Employees also have the right to be treated in good faith and those who work for employers that do not respect this obligation can be rewarded with damages, including in relation to wrongful dismissal.

Further, if an employee feels that they have been harassed online by a former employer (i.e., an employer posts about an ex-employee on online forums) they may have additional recourse to explore through this new law.  While the facts of Caplan v. Atas were extreme, it will take time to see how this test is applied in the future.

If you believe you have been harassed at work and your employer did not fulfil their duties to treat you in good faith, has acted in a manner that may have amounted to unjust dismissal, and/or has harassed you post-employment, contact Toronto employment lawyers Sultan Lawyers at 416-214-5111 or via email at mlahert@sultanlawyers.com.


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