Introduction and overview
A tort is a wrongful act committed by an individual that causes a claimant to suffer a loss or harm, leading to civil liability.
In the recent decision of Alberta Health Services v Johnston, 2023 ABKB 209, the Alberta Court of King’s Bench (ABKB) recognized a new tort in the Province of Alberta: the tort of harassment.
Background
The decision involved actions by the defendant Kevin Johnston (“Johnston”), a talk show host and mayoral candidate in Calgary in 2021, against the plaintiffs, Alberta Health Services (“AHS”) and a senior AHS employee. Johnston used his mayoral campaign as a platform to criticize AHS’ response to the COVID-19 pandemic. According to the ABKB, Johnston’s comments went beyond generally accepted criticism and he “spewed misinformation, conspiracy theories, and hate.”[1] Specifically, Johnston made the following public statements:[2]
- He called AHS and its employees: “Nazis,” “Fascists,” “terrorists,” and “criminals,” amongst other terms;
- He suggested that AHS had committed crimes of criminal trespass, criminal harassment, homicide, extortion, intimidation, and terrorism and that AHS employees deserve to have violent acts committed against them in return;
- He alleged that the individual plaintiff was an alcoholic and mocked photos of her and her family.
The plaintiffs asserted that they were defamed by Johnston and sought a significant award of damages and a permanent injunction restricting Johnston from making defamatory statements. Additionally, the plaintiffs argued that Johnston’s threatening and abusive conduct constituted “tortious harassment,” an invasion of privacy, and assault.
Law
The ABKB noted that the existence of a tort of harassment is controversial and an unsettled issue across provincial jurisdictions. The Ontario Court of Appeal addressed this issue in 2019 in its decision of Merrifield v Canada (Attorney General), 2019 ONCA 205 and specifically declined to create such a tort. The courts in British Columbia have similarly not recognized the existence of a tort of harassment.[3]
The Supreme Court of Canada endorsed an approach for recognizing new torts in Canada when it explained that the “[d]evelopment of the common law occurs where such developments are necessary to clarify a legal principle, to resolve an inconsistency, or to keep the law aligned with the evolution of society.”[4]
Upon review of the various Canadian cases, the ABKB found that there was a gap in the law; namely, that existing torts do not address the harm caused by harassment – the tort of defamation is limited to false statements causing reputational harm, the tort of assault refers to imminent threats of physical harm, and privacy torts address harassment only if there is a reasonable expectation of privacy. Similarly, the tort of intentional infliction of mental suffering requires both intent (as opposed to mere recklessness) and provable illness, whereas harassers often act with “reckless disregard as to the consequences of their actions” and victims of harassment often have no visible or provable illness, as they often engage in “self-preservation avoidance behavior.”[5]
As such, the ABKB declined to follow the Ontario Court of Appeal and created a new tort of harassment that will be assessed on a case by case basis. Specifically, a defendant will be found to have committed harassment where they have:[6]
- engaged in repetitive communications, threats, insults, stalking or other harassing behavior in person or through other means;
- that they knew or ought to have known was unwelcome;
- which impugn the dignity of the plaintiff, would cause a reasonable person to fear for the plaintiff’s safety or the safety of the plaintiff’s loved ones, or could foreseeably cause emotional distress; and
- caused harm.
Importantly, the ABKB noted that harassment occurs when the behaviour is recurring and creates an oppressive atmosphere – while a single encounter may be actionable on other grounds, it does not constitute the tort of harassment.[7]
In justifying the creation of the tort of harassment, the Court noted that section 264 of the Criminal Code, RSC 1985, c. C-46 makes harassment a crime and that the ABKB regularly grants restraining orders preventing harassment.
The ABKB found that Johnston’s harassing behavior would cause a reasonable person to fear for their safety or the safety of their loved ones, and that the emotional distress and negative impact on the individual plaintiff’s quality of life was serious and should be recognized through a “significant award of damages.”[8] The individual plaintiff was awarded $300,000 in general damages for defamation, $100,000 in general damages for harassment, and $250,000 in aggravated damages.
While AHS was not eligible for damages (because government actors cannot maintain claims for defamation), both the individual plaintiff and AHS were awarded permanent injunctions restraining Johnston.
Practical takeaways
This decision creates a new civil avenue of justice for persons in Alberta suffering harassment for which they can seek compensation. Prior to this decision, victims often faced significant challenges in pursuing legal action outside of criminal law.
It is important to note that not all unwelcome communications or behavior will constitute “harassment” under this tort. The four elements of harassment as set out in this decision will be assessed in future cases on an objective, case by case basis.
Miller Thomson’s Commercial Litigation Group is experienced and able to assist with tort and defamation claims, as well as harassment claims.
[1] Alberta Health Services v Johnston, 2023 ABKB 209 [Johnston] at para 1.
[2] Ibid at paras 15 – 21, 109.
[3] Anderson v Double M Construction Ltd., 2021 BCSC 1473 at para 196; Skutnik v British Columbia (Attorney General), 2021 BCSC 2408 at para 32; and Ilic v British Columbia (Justice), 2023 BCSC 167 at para 196.
[4] Johnston at para 83 citing Nevsun Resources Ltd. v Araya, 2020 SCC 5 at para 118.
[5] ibid at para 100.
[6] ibid at para 107.
[7] ibid at para 106.
[8] ibid at paras 109, 116.
