“Bullying drops off at the end of high school, but it never goes away – it’s in the workplace”
Professor Shelley Hymel, University of British Columbia on bullying
The Nova Scotia legislature recently passed Bill 61 – the Cyber-safety Act. The bill received Royal Assent and will come into force at a future date on Proclamation. What’s behind the bill is set forth in section 2:
The purpose of this Act is to provide safer communities by creating administrative and court processes that can be used to address and prevent cyberbullying.
If you’re an employer in Nova Scotia, you will want to know that this legislation applies to your workplace.
At first glance, many will view the bill as a reaction to cyberbullying and recent tragic events in Nova Scotia, but this bill goes beyond the schoolyard in addressing the bullying issue. More about the bill itself can be read in a recent Stewart McKelvey Client Update on the issue.
What is cyberbullying and what are some workplace examples?
Cyberbullying is defined in Section 3 of the legislation as:
(b) “cyberbullying” means any electronic communication through the use of technology including, without limiting the generality of the foregoing, computers, other electronic devices, social networks, text messaging, instant messaging, websites and electronic mail, typically repeated or with continuing effect, that is intended or ought reasonably be expected to cause fear, intimidation, humiliation, distress or other damage or harm to another person’s health, emotional well-being, self-esteem or reputation, and includes assisting or encouraging such communication in any way;
(c) “electronic” includes created, recorded, transmitted or stored in digital form or in other intangible form by electronic, magnetic or optical means or by any other means that has capabilities for creation, recording, transmission or storage similar to those means;
Essentially, whenever an employee uses new electronic technology to scare, intimidate, embarrass, distress intended to harm another person’s health, emotional well-being, self-esteem or reputation.
Vicarious liability and cyberbullying at the workplace
Section 23 of the legislation preserves the right of an injured party to sue “a person” (i.e., an employer) under the doctrine of vicarious liability:
A right of action or a remedy created under this Act is in addition to, and does not affect, any other right of action or remedy available to a person under the common law or by statute.
What is vicarious liability? In a nutshell, it’s liability for the actions of another even though the person being held responsible may not have done anything wrong. If you’re interested in reading more about vicarious liability, you can go to John Doe v. Bennet a recent decision of the Supreme Court of Canada in which the court upheld a lower court decision saying that a church was responsible for the acts of one of its priests, even though the church was unaware of those acts.
When the Cyber-Safety Act comes into effect, employers may face vicarious liability for cyberbullying acts of employees against co-workers or third parties. Because what’s good for the goose is almost always good for the gander, an employee may also be held liable for cyber-bullying acts aimed at their employer.
The Cyber-Safety Act does not expressly say that employers cannot be liable for cyber-bullying acts of employees, but it has long been accepted under common law that employers can be vicariously liability for acts committed during the course of employment.
Section 21 of the Cyber-safety Act makes cyber-bullying a tort, and provides courts with the power to award the same damages available for other torts (such as battery, negligence, etc.) for acts of cyber-bullying. Notably, the legislation uses the broad word “person”:
A person who subjects another person to cyberbullying commits a tort against that person.
“Person” is not defined in the legislation. It is likely that the word will be given a broad interpretation to include employers and employees.
What are the consequences?
We all know that cyberbullying has the potential to end in tragedy. That is what the legislation intends to prohibit. The financial consequences of violating the legislation are:
22 (1) In an action for cyberbullying, the Court may
(a) award damages to the plaintiff, including general, special, aggravated and punitive damages;
(b) issue an injunction on such terms and with such conditions as the Court determines appropriate in the circumstances; and
(c) make any other order that the Court considers just and reasonable in the circumstances.
(2) In awarding damages in an action for cyberbullying, the Court shall have regard to all of the circumstances of the case, including
(a) any particular vulnerabilities of the plaintiff;
(b) all aspects of the conduct of the defendant; and
(c) the nature of any existing relationship between the plaintiff and the defendant.
Although there is no guidance on the range of damages that may be awarded, courts will be taking into consideration the particular vulnerabilities of the plaintiff, the conduct of the defendant and any existing relationship between the plaintiff and defendant.
What should an employer do?
Facebook and other social media can be fun, but it can sometimes lead to devastating consequences. Employers, companies, directors, officers, employees, etc. should be mindful of their social media and technology use policies. Such policies should be updated to reflect the new tort, once proclaimed, and emphasize the importance of following those policies. Employees should be aware of the types of behaviour that are prohibited. If there is a complaint of cyberbullying in the workplace take immediate steps to investigate and deal with it accordingly.
As with all policies – a cyberbullying policy should always be consistently enforced. We will keep you up to date with further progress on this law.