A Dartmouth woman who took to social media to complain about a construction crew that pestered her with “catcalls, whistles and lewd remarks” does not constitute cyber-bullying, according to a Nova Scotia Supreme Court decision released Tuesday.
Construction foreman Adam Fraser took Ellen Crossman to court last fall complaining that her Facebook posts about his crew’s behaviour violated the Intimate Images and Cyber-Protection Act.
“A finding of ‘cyber-bullying’ under the act is serious and Mr. Fraser failed to tender sufficient evidence to prove the elements of ‘cyber-bullying’ on the balance of probabilities. To find otherwise would, respectfully, do a disservice to the act by diluting the importance of proving each element of ‘cyber-bullying’ under the act and potentially diminish the seriousness of being found liable under the act,” Justice John Keith said in his written decision.
“The application is denied.”
Origins of the conflict
The dispute originated “in a series of incidents that occurred on Seapoint Road in Dartmouth, Nova Scotia in an area referred to locally as Harbour Isle,” said the judge.
Fraser was working for Elm Construction, building a new high-rise and townhouse residential complex at 48 Seapoint Dr., dubbed The Camden.
“Across the street from The Camden was a completed high-rise and townhouse residential complex called ‘The Hazelton,’” said the judge, noting that’s where Crossman moved in on Oct. 1, 2019.
“She soon began receiving catcalls, whistles, and lewd remarks from certain unidentified members of the construction crew (not Mr. Fraser) working at The Camden.”
‘It needs to stop’
She complained to Madison Byrne, a construction superintendent at the site, who emailed his workers to cut it out. “We have an issue with a (resident) at the Hazelton, she is complaining that people are catcalling, yelling, cussing and other nonsense,” the note said. “Apparently, this is a regular occurrence. It needs to stop.”
But Crossman told the court the harassment continued.
“On the morning of September 3, 2020, Ms. Crossman left The Hazelton with her partner. A barricade had been placed in front of her car. She moved the barricade and was driving off from The Hazelton when she noticed a construction worker (not Mr. Fraser) ‘filming in the direction of us.’ Given the history, she says this put her on ‘high alert.’”
When she returned home, she asked the worker who had been shooting video for his name and an explanation.
“The workman did not respond. The lack of response concerned Ms. Crossman. She took a photograph of the unnamed workman on her cellphone.”
That’s when Fraser first intervened. Crossman “acknowledges that Mr. Fraser had absolutely no involvement in any of the alleged harassment or offending behaviours,” said the judge.
But, Crossman said, he “became part of what she perceived to be a general inclination within the construction company to minimize or even make light of her complaints around harassment.”
Fraser told the court he was concerned that day because “Crossman failed to park in a designated parking area and further ignored attempts by the construction crew to secure the construction site (and protect Ms. Crossman’s car) by placing a barricade in front of her car. He explained that a major concrete pour was expected to occur later that day.”
Fraser told the court he saw Crossman shooting photos of the construction site and “removing the barricade before driving off,” said the judge.
“Mr. Fraser testified to his ‘ire’ that somebody would park outside the designated parking area and remove the safety barricades.”
His worker shot video of her “not to harass but, on the contrary, to defend against allegations of harassment,” Fraser told the court.
“Unfortunately, neither side was able to muster the empathy or patience to accept or understand their competing explanations and concerns,” said the judge, noting the exchange descended into mutual insults.
Crossman took to Facebook in September of 2020 to complain about the matter.
In her first post, she named the construction company WSP Global and Elm Developments.
‘They said there is nothing they can do’
“They have cat called, yelled, called names, yelled amongst themselves about what house number I lived in, called me derogatory names amongst other things I’m not going to put on Facebook, causing me to feel extremely unsafe when I’m home alone,” said the first post.
“When bringing these issues up with the construction company they said there is nothing they can do because the workers they hire rarely have a Grade 12 education and that’s just their mentality.”
The site manager smirked when Crossman tried to explain her concerns, she said in the post, which notes police told her there was nothing they could do about it.
“When I filed a formal complaint back in October last year, a day or two later my back windshield was completely smashed in,” said Crossman’s post.
“This crew of 50-60+ men work every single day maybe 30 steps from my front porch and nobody will do anything about their behaviour. People wonder why women are so scared and paranoid all the time. This is why.”
Do not engage — police
Police advised both Fraser and Crossman “to not contact or engage one another,” said the judge.
That’s when she took to Facebook again. “You can imagine the level of anger that I feel the need to censor myself to accommodate someone’s feelings who acts this way.”
About six weeks later, Fraser asked Crossman to remove his name from her original post. “He mentioned that this was affecting his job and his livelihood.”
In April of 2021, Crossman deleted the comments to, in her words, “put all this behind me and move on for my mental health,” according to the decision.