In a groundbreaking decision, the Alberta Court of King’s Bench recognized the common law tort of harassment in the case of Alberta Health Services vs. Johnston. This marked a significant departure from the stance taken by other Canadian provinces, including Ontario, and has potential implications for the legal landscape concerning harassment.
The Parties Involved:
The Plaintiffs in this case were Alberta Health Services and two of its employees, specifically public health inspectors responsible for disseminating information about orders related to the COVID-19 pandemic. The Defendant was Kevin Johnston, a former mayoral candidate from Calgary.
Facts of the Case:
The Plaintiffs alleged that Mr. Johnston engaged in harassment and defamation through his talk show and various social media platforms. The accusations included labelling the Plaintiffs as “criminals,” suggesting they could be arrested for “culpable homicide,” and threatening to liquidate their houses and bank accounts. The Plaintiffs claimed damages for harassment and defamation and sought injunctive relief.
The Court acknowledged the controversy surrounding the recognition of the tort of harassment, citing the refusal of the Ontario court in Merrifield v. Canada (Attorney General), 2019 ONCA 205 (CanLII), and the British Columbia court in Skutnik vs. British Columbia (Attorney General), 2021 BCSC 2408 (CanLII), and Ilic vs. British Columbia (Justice), 2023 BCSC 167 (CanLII) to do so in previous cases. Justice Graesser expressed surprise at the Ontario Court’s resistance and saw harassment as a logical extension of the existing tort of the intentional infliction of mental suffering. The Alberta Court emphasized the historical insensitivity of the common law to the wrongs suffered by women and marginalized groups, pointing out that the failure to recognize a tort of harassment in the past does not negate its justification.
The Alberta Court considered the principles for recognizing new torts as outlined in Nevsun Resources Ltd. vs. Araya, 2020 SCC 5 (CanLII),  1 SCR 166. The majority opinion in Nevsun emphasized the development of common law where necessary to clarify principles or address inconsistencies. The dissenting opinion, however, placed more restrictions on recognizing new torts, requiring that there be no adequate alternative remedies, that the tort reflects a wrong, and that the change to the legal system is not indeterminate or substantial.
In justifying the recognition of a tort of harassment, the Alberta Court noted that harassment is already a criminal offense under the Criminal Code. The existence of a criminal offense suggests the wrongfulness of harassment, raising the question of whether a civil remedy should also be available. Additionally, the Court considered the possibility of the Legislature creating a statutory cause of action but emphasized that the absence of legislative action does not preclude the judicial development of the common law.
The Alberta Court emphasized the need to address gaps in existing torts that failed to adequately address the harm caused by harassment. Traditional torts like defamation and assault were deemed inadequate as they focused on false statements causing reputational harm and imminent threats of physical harm, respectively. Newer privacy torts only cover harassment with a reasonable expectation of privacy, limiting their applicability. The tort of private nuisance, although applied in specific cases, falls short as it requires a connection to property. The tort of intimidation also has limitations, as it demands submission to a threat. The Court emphasized the need for a tort that specifically addresses the harms associated with harassment, which existing torts fail to fully capture.
The Court noted that recent decisions in Ontario and Manitoba had already recognized a narrower tort of internet harassment, highlighting the inconsistency of acknowledging harassment only in specific contexts. The Court acknowledged that harassment is a concept that, like negligence, takes its meaning from the context in which it occurs and lacks a bright line for determining what constitutes harassing behaviour. However, the Court rejected existing articulations of the tort, including those requiring severe or extreme emotional distress, as they failed to address losses or harm suffered by individuals beyond extreme emotional distress. The Court proposed a definition based on the essence of criminal harassment, emphasizing repeated or persistent behaviour that creates an oppressive atmosphere. The defined elements include repeated communications, threats, insults, stalking, or other harassing behaviour; behaviour known or ought to be known as unwelcome; behaviour impugning the plaintiff’s dignity, causing reasonable fear, or foreseeable emotional distress; and causing harm. The newly established tort of harassment would allow for damages in cases where civil remedies were previously limited to restraining orders.
Elements of the Tort of Harassment:
The Court outlined the criteria for establishing the tort of harassment:
- Engaging in repeated communications, threats, insults, stalking, or other harassing behaviour.
- Conduct that the defendant knew or ought to have known was unwelcome.
- Behaviour impugning the dignity of the plaintiff, causing a reasonable person to fear for their safety or emotional distress.
- Proof of harm caused.
The Court awarded $100,000 for harassment, $300,000 for defamation, and an additional $250,000 in aggravated damages. Permanent injunctions were granted to restrain Mr. Johnston’s activities related to Alberta Health Services and one of the individual Plaintiffs.
Implications for Employers:
This decision has significant implications for employers in Alberta, who may now be vicariously liable for harassment that is not related to protected human rights grounds. Unlike previous remedies such as human rights claims or constructive dismissal, this new tort is not restricted to incidents occurring during employment or resulting in medical injury. Employers are advised to implement well-drafted anti-bullying and harassment policies, provide regular training, and promptly address and investigate any incidents or allegations of workplace harassment to avoid potential liability.
The Alberta Court’s recognition of the tort of harassment sets a precedent in Canadian law, potentially paving the way for other provinces to follow suit. Employers across Canada must be vigilant in adapting policies and practices to address this evolving legal landscape and ensure a safe and harassment-free workplace. The case highlights the ongoing need for legislative and judicial responses to contemporary challenges, particularly in the context of emerging issues such as internet harassment.