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Law of Torts.doc
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12) Harassment

There is no conventional or clear distinction between stalking and harassment and the terms are often used interchangeably. The dichotomy drawn here is between harassing conduct that causes a person to fear for her own safety (stalking) and harassing conduct that is seriously annoying, distressing, pestering, and vexatious (harassment). Harassment may include some minor sexual harassment, harassment by creditors or governmental officials, and abusive or racist communications, all of which may be disturbing and upsetting but not frightening. Harassment, so described, may not fall within any of the traditional torts although harassing telephone calls to one's home may be a nuisance and some harassment may be a breach of privacy. In extreme circumstances, harassment may be actionable as an intentional infliction of nervous shock.

There is little authority addressing the issue of a discrete tort of harassment. [Note 65: R. v. Rollinson, [1991] 3 F.C. 70 (T.D.) (harassment by customs officials).] What there is has arisen mainly in respect of sexual harassment in the workplace. In Chapman v. 3M Canada Inc., [Note 66: (1995), 24 C.C.L.T. (2d) 304 (Ont. Gen. Div.), aff'd (1997), 37 C.C.L.T. (2d) 319 (Ont. C.A.). See also Allen v. C.F.P.L. Broadcasting Ltd. (1995), 24 C.C.L.T. (2d) 297 (Ont. Gen. Div.); and Nicholas v. Mullin (1998), 199 N.B.R. (2d) 219 (Q.B.).] an action for sexual harassment in the workplace was struck out as disclosing no cause of action. The Ontario Court of Appeal affirmed the decision of the lower court, which had applied the reasoning of the Supreme Court in Seneca College and held that the Ontario Human Rights Code provides an exhaustive and exclusive scheme of adjudication and redress for such claims and there is no room for the development of an independent tort of sexual harassment. A further obstacle to tort remedies for harassment in the workplace is created by the Supreme Court decision in Weber v. Ontario Hydro, [Note 67: [1995] 2 S.C.R. 929.] which excludes tort actions from employment disputes arising under a collective bargaining agreement governing the parties. These disputes must be resolved under the labour arbitration process. In Lajoie v. Kelly, [Note 68: [1997] 3 W.W.R. 181 (Man. Q.B.).] however, an independent tort of sexual harassment was recognized in a workplace that was not governed by a collective agreement. The trial judge was guided by, and adopted the definition of, sexual harassment used by the Supreme Court in interpreting The Human Rights Code of Manitoba. [Note 69: 1 S.M. 1987-88, c. 45.] In Janzen v. Platy Enterprises Ltd., [Note 70: [1989] 1 S.C.R. 1252. ] the Supreme Court defined sexual harassment as "any sexually oriented practice that endangered an individual's continued employment, negatively affects his/her work performance, or undermines his/her sense of personal dignity." This definition was wide enough to cover both the hostile work environment situation that arose in Lajoie and the quid pro quo situations where benefits and other advantages are tied to sexual favours.

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