Another Option to Prevent Harassment of Regulatory Staff

The harassment of the staff of regulators has become a major issue in recent years. The genesis of such harassment varies, but has included opposition to the regulator’s activities related to the pandemic, aggressive tactics to defend against regulatory investigations and enforcement (the best defence is a good offence), and possibly the mental health status of the harassing individuals. Tactics have included posting personal information (e.g., names and pictures of staff) online, posting hateful comments about staff online, and even making reports of illegal conduct by staff to the police (e.g., describing the regulatory removal of files for an investigation as theft or burglary).

Regulators, like all employers, have a legal duty to protect their workers from harassment. Doing so is also essential for retaining good staff. A first line response can be administrative. Many regulators now have secured entrances to their physical premises preventing harassers from entering anywhere but the reception area. Harassers have been limited to communicating in writing and with only one staff person. Some regulators have even restricted access to public meetings and hearings to virtual attendances. Remote work can also help reduce the stress, so long as the harasser does not obtain (or threaten to obtain) staff members’ home addresses. In those circumstances regulators have sometimes offered to pay for security measures for staff residences. Some regulators have even begun to withhold the names of staff members on communications and the identities of decision-makers in reasons for decision where harassment is reasonably foreseeable.

However, such measures do not protect against online or outside-of-the-office physical harassment where identities are known. An obvious option is to respond to social media and other public statements with factual information to rebut the allegations of the harasser. However, such a response often provokes more harassment. A communications response can also come across as unseemly for a public regulator and can create an appearance of bias.

Regulators have several legal options at their disposal, none of which are completely effective. Perhaps the most common legal option is to investigate and bring discipline (or incapacity) proceedings where the harasser is a registrant. See for example: Zuk v Alberta Dental Association and College, 2018 ABCA 270 (CanLII). Such proceedings can take time, generate a constitutional freedom of expression argument, and can, again, result in allegations of an appearance of bias on the part of the regulator.

Another option can be to seek criminal harassment charges or a peace bond. However, as a practical matter, that option often requires persuading stretched law enforcement officers to take on the case. While the scope of criminal harassment is expanding, its focus tends to be on threats of violence or intimidation, or of stalking behaviour (physical or online). Some harassers are becoming increasingly sophisticated in not quite crossing that line (e.g., stating that they do not condone violence but would not be surprised if someone was pushed beyond the breaking point).

Another option is for the regulator to bring an action for defamation. However, anti-SLAPP legislation creates hurdles that may make it difficult for regulators to overcome. See, for example, Ontario College of Teachers v. Bouragba, 2019 ONCA 1028 (CanLII). Courts have been protective of the right of registrants and others to make public statements about regulators that are false or unwelcome. For example, in College of Physicians and Surgeons of Ontario v. O’Connor, 2022 ONSC 195 (CanLII), the Court refused to protect the identities of regulatory staff and investigators despite multiple postings by supporters of a registrant that were angry in tone and threatened them with Nuremberg-type and criminal prosecutions for their actions. The Court viewed regulatory staff as being analogous to public servants. The values of an open and democratic society allow for criticism, even unfair criticism. Threatening legal action, even unfounded legal action, needed to be endured unless the postings threatened violence or “actual intimidation”.

A recent Alberta decision might suggest another legal option for regulators whose staff face harassment: Alberta Health Services v Johnston, 2023 ABKB 209 (CanLII). The opening paragraph of that case reads as follows:

Kevin J. Johnston enjoyed a moment of notoriety as candidate for mayor of Calgary in 2021. During his mayoralty campaign, on his eponymous online talk show, and anytime there was a microphone nearby, Mr. Johnston spewed misinformation, conspiracy theories, and hate. Among his favourite targets were Alberta Health Services (“AHS”) and Sarah Nunn, who was employed by AHS as a public health inspector.

The Court gave the following example about Ms. Nunn:

On several occasions, Mr. Johnston engaged in rants on his show about Ms. Nunn. His rants about Ms. Nunn, were accompanied by pictures of Ms. Nunn and her family that he acquired from her unlocked social media accounts. His rants belittled Ms. Nunn and her husband and were filled with pejorative descriptions. His favourite description for Ms. Nunn was “terrorist”. At one point, he said that Ms. Nunn’s husband “looked retarded.” He reproduced pictures of Ms. Nunn’s family with the faces of her children obscured. The following screed is representative of his statements about Ms. Nunn:

If you’re friends with this Sarah Nunn person, when I’m mayor, you’re going to be investigated as well…. I intend to make this woman’s life miserable, I intend to destroy this woman’s life like she has destroyed the lives of Calgarians ….

In a lengthy analysis, the Court found that the AHS was a government actor that could not sue for defamation. This seems to go further than the protections offered under Ontario’s anti-SLAPP legislation.

However, the Court found that Ms. Nunn was in a different position. While the Court was not prepared to apply a tort of invasion of privacy or assault in these circumstances, the Court was willing to apply, and clarify, the tort of civil harassment. The elements of the tort are described by the Court as follows:

  1. engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through or other means;
  2. that he knew or ought to have known was unwelcome;
  3. which impugn the dignity of the plaintiff, would cause a reasonable person to fear for her safety or the safety of her loved ones, or could foreseeably cause emotional distress; and
  4. caused harm.

While the Court in this case found that the postings of Mr. Johnston did incite his followers to violence, as noted above, the Court also indicated that the tort would be available in other circumstances. Citing the Ontario case of Caplan v. Atas, 2021 ONSC 670 (CanLII), the Court indicated that the tort was also available for where the statements “cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm”.

In addition to an injunction, the Court awarded a total of $650,000 for damages under various headings, including $100,000 general damages for the tort of harassment.

Regulators may now have a good precedent for another option in protecting their staff from harassment.

This article was originally published by Law360 Canada, part of LexisNexis Canada Inc, at Law360 Canada.

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