The Evolution of Judge-Made Law: Creating New Tortious Claims

Recently, in Canada, common law judges have created two new torts by recognizing the need for legal protection in contexts where previously existing torts did not suffice. In Ontario, an invasion of privacy tort was established, while in Alberta, a harassment tort was recognized. These cases highlight the dynamic nature of common law and the role of judges in recognizing and creating new legal frameworks to address contemporary issues.

A Common Law Tradition

In a tradition that aligns with common law principles, judges are often called upon to create new torts in response to novel situations. Assault, conversion, and nuisance are examples of historically recognized actionable claims that emerged through similar judicial processes. The origins of these torts were not established by legislation, but by judges' interpretations of existing laws and the societal norms of the time.

The Case of Invasion of Privacy in Ontario

In one notable Ontario case, a bank employee was charged with the invasion of privacy after repeatedly accessing a colleague's banking records outside the scope of her duties. Despite recognizing the severity of the employee's actions, the court found that, without a recognized tort of invasion of privacy, the employee would have gone unpunished. The court awarded damages of around $15,000 to compensate the victim, underscoring the importance of having such a tort to protect individual rights.

The Emergence of the Harassment Tort in Alberta

In a more recent and controversial case, the Alberta court recognized a new tort for harassment. The plaintiff in this case faced persistent online defamation from a job applicant who, after being unsuccessful in job applications, started multiple anonymous online accounts to spread false and derogatory information about the hiring managers. This case demonstrates how the internet has transformed traditional defamation into a more insidious form of online harassment, requiring a new legal framework to address it.

Judging the Desirability of New Tort Claims

In determining whether to recognize new torts, judges focus on the conduct of the defendant and the existing legal landscape. If the existing laws are inadequate to address the harm caused, and if the recognition of a new tort would effectively deter such behavior in the future, the tort is likely to be recognized. In the invasion of privacy case, the harm caused by unauthorized access to personal information was deemed significant enough to warrant the creation of a new tort. Similarly, in the harassment case, the plaintiffs demonstrated that the current legal response to online defamation was insufficient, leading to the recognition of a new, more encompassing tort of harassment.

Implications and Future Directions

The recognition of these new torts highlights the evolving nature of legal protections in the digital age. As technology continues to evolve, judges must adapt to ensure that the law aligns with contemporary societal needs. Whether these new torts will be widely recognized by other courts remains to be seen, but they represent an important step in addressing the complexities of modern legal challenges.

Conclusion

The cases of invasion of privacy and harassment in Canada demonstrate the role of judges in creating new torts to address emerging issues. As technology and societal norms continue to change, the law must adapt accordingly. The recognition of these new torts reflects a judicial commitment to protecting individual rights and providing effective legal remedies in the digital age.