Employment Update

By Barry W. Kwasniewski

Jun 2023 Charity & NFP Law Update
Published on June 29, 2023



Alberta Court Finds Independent Tort of Harassment

In a significant decision, the Court of the King’s Bench of Alberta has established harassment as a freestanding common law tort. On April 12, 2023, the court released its decision in Alberta Health Services v Johnston. This decision reviewed a campaign of alleged harassment by an online political commentator and 2021 Calgary mayoral candidate, Keven J. Johnston, against the Alberta Health Services (“AHS”) and its employees (Sarah Nunn and Dave Brown), in response to their enforcement of COVID lockdown measures.

The plaintiffs brought claims of defamation and what they described as “tortious harassment” against Johnston. Tortious harassment, the plaintiffs claimed, constituted threats and abuse stemming from invasion of privacy and assault. The court sought to answer if a public authority could maintain an action for defamation and if a tort of harassment exists in Alberta (which is the focus of this article).

Johnston, on his online talk show, singled out Ms. Nunn, who was employed as an AHS public health inspector, and made personal and insulting comments against her and her families. He referred to the individual using the terms “terrorist”, “alcoholic”, “communist”, “Nazi” and alluded to violent outcomes to the individual being inevitable for their role in the enforcement of COVID lockdown measures. Johnston broadcast images of the employee and her family on his programs and social media.

In consideration of the finding of a potential new tort of harassment, the court noted that the Ontario Court of Appeal in Merrifield v. Canada (Attorney General), ruled that in that province, the existing caselaw were “not authority for recognizing the existence of a tort of harassment in Ontario, still less for establishing either a new tort or its requisite elements.” While the court in Merrifield did state that such a tort was possible and could be found at some point in the future, it was not prepared to make a ruling which would so dramatically shift the landscape of civil law. However, lower Ontario courts have made reference to a tort of harassment in the context of online abuse since Merrifield.

The court in Alberta Health Services referred to Alberta caselaw which criticized Merrifield; if online harassment was a category of tort, this necessitated the existence of a category of “low tech” harassment as well. Further, the court noted that the development of tort law has often ignored social factors affecting women and other marginalized groups, who it stated are often disproportionately affected by harassment.

The Criminal Code provisions regarding harassment provided a legal basis that “harassment is wrongful.” Further, the court regularly grants restraining orders to prevent harassment, both online and in-person. This demonstrated that harassment is a “justiciable issue” (para 97) and that giving the court the power to award damages where it once was only able to provide restraining order was “long overdue” (para 98).

In the opinion of the court, a tort of harassment “fills a gap in the law”. Existing torts which would be applicable, such as defamation and assault, were not sufficient as they “are limited to false statements causing reputational harm in the case of defamation and imminent threats of physical harm in the case of assault.” (para 99). Privacy torts were not sufficient as they were only applicable if there was reasonable expectation of privacy. Private nuisance, a tort which originated in Alberta was not sufficient as it requires a connection to property and intimidation fell short of addressing a behavior of harassment as it required threats. Intentional infliction of mental suffering was also inadequate, as it required the victim to suffer a visible or provable illness.

Careful to ensure that a clear definition of the new tort was established, the court outlined necessary elements required for harassment to be found. It compared harassment to negligence, stating that there is no “bright line” test, and that determination must be made on a case-by-case basis. Using prior case law and restraining order proceedings as a basis, the court found that harassment can be found when a defendant has:

  1. engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through or other means;
  2. that he knew or ought to have known was unwelcome;
  3. which impugn the dignity of the plaintiff, would cause a reasonable person to fear for her safety or the safety of her loved ones, or could foreseeably cause emotional distress; and
  4. caused harm.

Anticipating potential criticism of the decision, the court stated the following:

“Taking this step does not create indeterminate liability nor does it open floodgates; to the contrary, it defines the tort of harassment in a measured way that will guide courts in the future.”

Using this analysis matrix, the court concluded that Johnston had engaged in tortious harassment of the specific AHS employee.

This decision is limited to the province of Alberta, and does not change the state of the law in other provinces or territories. The court ruled that while the AHS could not succeed in its claims of defamation and harassment as it was a governmental authority, the main target of the defendant’s campaign, Ms. Nunn, had proved her case. In the result the court awarded Ms. Nunn:

  1. $300,000 in general damages for defamation, $100,000 in general damages for harassment, and a further $250,000 in aggravated damages.
  2. Permanent injunctions restraining Mr. Johnston’s activities in relation to AHS and Ms. Nunn.
  3. Costs of the proceeding, multiplied by three, in accordance with the Rules of Court.

Read the June 2023 Charity & NFP Law Update