'That is Not How the Common Law Works': Paths to Tort Liability for Harassment
46 Pages Posted: 11 Nov 2020 Last revised: 4 Feb 2021
Date Written: September 21, 2020
Can a common-law court create liability for harassment without a statute? A recent decision of the Court of Appeal for Ontario answered this question negatively. The court reasoned that liability for harassment requires creating a new tort, which is not something a court could do in the absence of special circumstances. Emphasizing the incremental nature of common law change, the court concluded that this is not the kind of legal change it could, or should, effect. I challenge the decision and its reasoning. While acknowledging the epistemic and political constraints that warrant caution, I argue that the Court of Appeal erred in not considering the possibility of creating tort liability for harassment by extending existing torts. I consider six possible paths to such liability, four of which I conclude are possible but limited, and two others that are promising and should be adopt-ed.
Keywords: harassment, bullying, tort law, negligence, psychiatric injury
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