Alberta is now the first Canadian jurisdiction to recognize that harassment can result in a civil suit, in the recently released decision of Alberta Health Services v Johnston, 2023 ABKB 209. To date, other provinces – Ontario and British Columbia – have declined to recognize the same tort.
The case involved an individual defendant in Alberta who was a candidate for mayor of Calgary in 2021. During his campaign, the plaintiffs, Alberta Health Services ("AHS"), and an individual employed as a public health inspector by AHS, were frequently targets of criticism by the defendant. In interviews with mainstream media and on social media platforms, the defendant attacked and castigated the plaintiffs, referring to them as criminals, making veiled threats of violence, and threatening personal and financial ruin.
AHS and two employees sued, including for harassment and defamation.
The Court Recognizes Harassment
In the decision, the Court first addressed the issue of whether unelected public bodies could bring suits in defamation, deciding the issue in the negative based on both domestic and international law, and in large part for reasons of public policy. This preliminary issue removed AHS as a plaintiff, leaving two employees in their individual capacities. As it turns out, only one of the employees faced behaviour that amounted to harassment or gave rise to reputational damage.
The tort of harassment has been controversial, with both the Ontario Court of Appeal (the "ONCA") in Merrifield v Canada (Attorney General), and the British Columbia courts declining to recognize it. The ONCA explicitly did not foreclose the development of a properly conceived tort of harassment in appropriate contexts in Merryfield, and subsequent decisions in the Ontario Superior Court have recognized the existence of a tort of internet harassment.
In recognizing a new tort of harassment, the Alberta Court was mindful of this history and identified that: i) harassment is a crime; ii) the courts regularly grant restraining orders preventing harassment; iii) existing torts do not address the harm caused by harassment. iv) judicial recognition of a new tort of harassment does not usurp the democratic will of the Legislature or its power to modify common law torts. The Court also developed a test to establish where harassment may give rise to damages, being where a defendant:
- engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through or other means;
- which they knew or ought to have known was unwelcome;
- which impugned the dignity of the plaintiff, would cause a reasonable person to fear for their safety or the safety of their loved ones, or could foreseeably cause emotional distress; and
- caused harm.
In applying the new test, the Court awarded $100,000 in general damages for harassment, among other damages.
Considering the New Tort for Employers
It remains to be seen how the courts across Canada will react to this decision, but employers should be aware of the recognition of the tort of harassment in Alberta. Other provinces may well follow suit and recognize similar torts. Employers should be mindful of the potential vicarious liability that could arise because of the conduct of their employees. It is strongly recommended that employers review workplace harassment and violence policies and procedures, as well as policies and procedures for addressing complaints of harassment and bullying.
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