We are pleased to summarize a recent Canadian HR Reporter article, “New deadline for AODA compliance looms on horizon,” with insight from Dave Bushuev.
Organizations with 20 or more employees in Ontario as well as designated public sector organizations must confirm their ongoing compliance with the accessibility requirements under the Accessibility for Ontarians with Disabilities
Special thanks to our articling student Ravneet Minhas for contributing to this update.
The Alberta Court of King’s Bench recently became the first Canadian province to recognize the tort of harassment. This development is notable in the face of recent case law out of both British Columbia and Ontario that has declined to recognize a general tort of harassment.
For example, the Ontario Court of Appeal in Merrifield v Canada (Attorney General), 2019 ONCA 205 overturned the finding of a trial judge who found that the tort of harassment existed in Ontario. The Court’s analysis explained that significant changes to the law should be left to the legislature, and the role of the courts is only to make incremental changes to the law. Similarly, British Columbia courts have also resisted recognizing the tort of harassment (Stein v Waddell, 2020 BCSC 253, Anderson v Double M Construction Ltd, 2021 BCSC 1473).
The recognition of a general tort of harassment by the Alberta Court of King’s Bench, coupled with case law post-dating Merrifield[1], may lead other Canadian courts to rethink their position on this issue. As discussed further below, Justice Feasby in Alberta Health Services v Johnston, 2023 ABKB 209, recognized the tort on the basis that the harm in question could not be adequately addressed by any existing torts (Nevsun Resources Ltd v Araya, 2020 SCC 5 at para 123). As such, where the facts of a case demand the creation of a novel legal remedy, other Canadian courts may recognize a similar tort of harassment.
Alberta Establishes a Tort of Harassment
In Alberta Health Services v Johnston, Alberta Health Services (AHS) and two of its senior employees sued Mr. Johnston for defamation, invasion of privacy, assault and harassment. Mr. Johnston, an online talk show host and mayoral candidate, used his talk show to frequently criticize the AHS’s response to the COVID-19 pandemic. He repeatedly alleged an intention to prosecute AHS employees for “heinous crimes”, and stated that his goal was to “bankrupt AHS members”. He further referred to the AHS as Nazis and suggested that they should be subject to violent attacks. He particularly targeted one AHS employee, Ms. Nunn, by sharing photos from her social media accounts, attacking her family and alleging that she was an alcoholic.
The Court awarded Ms. Nunn $300,000 in general damages for defamation, $100,000 in general damages for harassment, and $250,000 in aggravated damages. While the Court held that AHS was not eligible for damages, both Ms. Nunn and AHS were granted permanent injunctions restraining Mr. Johnston.
In recognizing the tort of harassment, Justice Feasby canvassed the existing case law across the country and found that no existing torts squarely addressed the harms caused by the harassment. He found that while defamation and assault share some elements with harassment, they fall short of clearly addressing the type of harm suffered by Ms. Nunn. Similarly, the new privacy torts only address harassment where there is a reasonable expectation of privacy.
Justice Feasby also noted that the recognition of the tort was merely a reflection of what Alberta courts have already been doing in the context of granting restraining orders.
In his decision, Justice Feasby defined the tort of harassment to exist where a defendant has:
Special thanks to our former articling student, Eloise Somera.
In British Columbia (Human Rights Tribunal) v. Gibraltar Mines Ltd., 2023 BCCA 168 (“Gibraltar Mines“), the British Columbia Court of Appeal upheld the BC Human Rights Tribunal’s decision that a change in employment terms is not a necessary precondition to a finding of prima facie discrimination based on family status.
The Relevant Legal Tests
In Moore v. British Columbia (Minister of Education), 2012 SCC 61 (“Moore“), the Supreme Court of Canada outlined the test for establishing discrimination in the workplace:
In conjunction with this general test, the British Columbia Court of Appeal in Health Sciences Assoc. of B.C. v. Campbell River and North Island Transition Society, 2004 BCCA 260 (“Campbell River”) elaborated on what is required to prove prima facie discrimination based on family status. The Campbell River test requires an employee to prove:
The Campbell River test was reaffirmed in Envirocon Environmental Services, ULC v. Suen, 2019 BCCA 46 (“Suen”).
Special thanks to co-authors Julia Webster and Jing Xu, and contributor Oscar Ramirez (articling student in our Toronto office).
This article provides an overview of the global rise in human and labor rights legislation linked to trade measures and how this impacts the consumer goods and retail industry.
We examine:
Our two-part webinar series was designed to bring Canadian in-house counsel and human resources leaders up to speed on the top labour, employment and human rights law developments of 2021 and to prepare them for what’s on the horizon in 2022.
Using our “quick hits” format, we provided two content-rich presentations complete with practical takeaways
And we thought 2020 was a doozy! In terms of continuing challenges, unprecedented questions and shifting legal landscapes, 2021 delivered.
Between maintaining business continuity and keeping your workforce safe, we know there’s been little time to track the rapidly changing labour, employment, and human rights law landscape in Canada.
This two-part webinar series is designed
On October 28th, Baker McKenzie International Human Rights lawyer Kevin Coon was joined for a conversation with Canada’s first Ombudsperson for Responsible Enterprise Sheri Meyerhoffer, to explore the mandate of the Office of the Canadian Ombudsperson for Responsible Enterprise (CORE).
The CORE was established in 2019 following consultations with the late John Ruggie, author
In recent years, Canadian courts have increasingly heard large civil claims against Canadian companies for alleged human rights violations in their foreign operations. As we have discussed previously, judges faced with these claims must determine whether the court’s jurisdictional reach extends to the company’s activities in its global supply chain, thus permitting foreign claimants to pursue their action in Canada.
Continue Reading Rana Plaza Class Action Blocked in Ontario & Nevsun Decision Challenged at Canada’s Highest Court
The Ontario government has introduced proposed amendments to the province’s regulatory framework for cannabis. If passed, Bill 36, the Cannabis Statute Law Amendment Act, 2018, will alter the newly-introduced Cannabis Act, 2017 (not yet in force) and other provincial legislation to reflect the current government’s plan for dealing with the legalization of recreational cannabis on October 17, 2018.
Continue Reading Legalization is in the Air – Ontario Moves to Amend Previous Government’s Cannabis Legislation
Earlier this year, the Supreme Court of Canada (SCC) refused the union’s leave application in Suncor Energy Inc v Unifor Local 707A, 2017 ABCA 313 (Suncor ) thereby leaving the Alberta Court of Appeal’s (ABCA) ruling intact. The ABCA had held that evidence of substance-related safety risks across an employer’s workforce (including both union and non-union workers) may be taken into account when assessing the permissibility of random testing of unionized workers.
Suncor is a favourable result for employers because it is in step with taking a holistic approach to workplace safety. But it is by no means a green light for drug and alcohol testing in the workplace. With the legalization of recreational use of cannabis fast approaching, we outline the current state of the law and key best practices for workplace impairment testing.
Continue Reading Legalization Draws Near, Where are We Now on Employee Testing?
