10) Discrimination

Early in the 1980s, some courts were attracted to the idea of a tort of discrimination which would complement the protection of equality found in federal and provincial human rights legislation. The protection of equality interests, like privacy, requires a balance to be drawn with other legitimate interests. For example, the interest in freedom from discrimination must be balanced against the interest in freedom of contract which is a characteristic of a competitive marketplace. In the case of equality, however, the existing legislative schemes provide a blueprint for the balancing of those interests. Tort law could, therefore, with relative ease, provide a supplementary or alternative remedy which would be consistent with those available under the legislative regimes. The issue reached the Supreme Court in Seneca College of Applied Arts & Technology v. Bhadauria. [Note 59: [1981] 2 S.C.R. 181 [Seneca College].] In that case, the plaintiff was a woman of East Indian origin who made several applications for teaching positions at the defendant college. Despite being well qualified for the positions, she was not even given an interview. She claimed that this was due to her ethnic origin and she brought a tort action against the college. An application to strike out the statement of claim as disclosing no cause of action was successful at first instance, but the Ontario Court of Appeal held that the plaintiff had a common law right not to be discriminated against because of her ethnic origin, which was independent of statutory obligations and remedies. This decision was in turn reversed by the Supreme Court. It held that the Ontario Human Rights Code [Note 60: 1 R.S.O. 1990, c. H.19.] provided a comprehensive and exhaustive vehicle for protection against discrimination and there was no need to recognize and develop a complementary tort remedy. The decision has been regretted by some. An independent tort of discrimination would have had certain advantages. The processing of complaints under human rights codes depends to a degree upon the resources, energy, and discretion of the governmental bureaucracy charged with enforcing the code. Tort actions are commenced and controlled by the plaintiff. Furthermore, compensatory remedies may be more generous under the tort system.

11) Stalking

In recent years there has been a great deal of public attention and concern directed to the issue of stalking. Broadly speaking, stalking occurs when a person knowingly or recklessly harasses another person in a manner that leads that other person to fear for her own safety. Such conduct is prohibited under section 264(1) of the Criminal Code [Note 61: R.S.C. 1985, c. C-46.] (the term criminal harassment is used), but there is no independent common law tort of stalking providing a civil remedy for the subject of the stalking against the offender.

The subjects of stalking may resort to the conventional heads of tortious liability. A stalker, in the course of his activities, may commit a number of torts such as assault, battery, the intentional infliction of nervous shock, trespass to land, nuisance, or defamation for which liability may be imposed. The use of traditional torts does not, however, capture the full extent of the wrongful conduct. It focuses attention on the various discrete acts of the stalker which may appear relatively insignificant when examined in isolation from the complete pattern of behaviour. The only area of tort law that promises a holistic remedy is the nascent common law tort of privacy and the statutory tort under the Privacy Acts. Although it is not always characterized as such, stalking is a substantial and unreasonable invasion of another's privacy. This was recognized in the case of Pateman v. Ross, [Note 62: Above note 56. ] where a young woman, who was unable to accept either the termination of her relationship with the plaintiff or his subsequent marriage to another woman, embarked on a course of harassing conduct aimed at the plaintiff, his wife, and family. The trial judge had no hesitation in concluding that the conduct was a violation of the Manitoba Privacy Act and awarded an injunction against the defendant.

Although it is not beyond the power of the common law to develop a general tort of stalking, [Note 63: In England, there have been recent cases of stalking that have led to the recognition of a nascent tort of harassment. In Khorasandjian v. Bush, [1993] Q.B. 727 (C.A.), for example, the English Court of Appeal upheld an injunction to prohibit a classic case of stalking of a young woman who lived with her parents. The tort of harassment (the English court used the terminology of harassment rather than stalking) was based on the principles of private nuisance and the intentional infliction of nervous shock. This development in tort law was, however, subsequently overtaken by passage of the Protection from Harassment Act 1997 (U.K.), 1997, c. 40, which created both criminal and civil remedies for stalking. This legislative initiative was one of the reasons that subsequently led the House of Lords to overrule Khorasandjian in Hunter v. Canary Wharf Ltd., [1997] A.C. 655 and to put an end to the tort of harassment. It is possible, of course, that Khorasandjian will find more fertile soil in Canada.] it is more likely that legislative initiatives will extend the civil remedies for stalking. In Manitoba, for example, The Domestic Violence and Stalking Prevention, Protection and Compensation and Consequential Amendments Act [Note 64: S.M. 1998, c. 41.] contains a panoply of civil remedies for both stalking and domestic violence, including a tort of stalking actionable without proof of damage.