Author ORCID Identifier
Dan Priel: 0000-0002-8648-5760
Document Type
Article
Publication Date
4-30-2021
Source Publication
Ottawa Law Review, Vol. 52, Issue 1 (2020-2021), pp. 87-132
Abstract
CAN A COMMON law court create liability for harassment without a statute? A recent decision of the Court of Appeal for Ontario has answered negatively. The Court reasoned that liability for harassment requires creating a new tort, which is not something a court could do unless there are 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 adopted.
Repository Citation
Priel, Dan, ""That Is Not How the Common Law Works": Paths to Tort Liability for Harassment" (2021). Articles & Book Chapters. 3357.
https://digitalcommons.osgoode.yorku.ca/scholarly_works/3357