A new tort of harassment will enhance courts’ ability to compensate victims and achieve just outcomes, ruled Justice Colin Feasby in Alberta Health Services v Johnston, 2023 ABKB 209.
This case sets out a four-part test for assessing whether a defendant committed the new tort of harassment. To meet the test, the defendant must have:
- Engaged in repeated 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.
The ruling fills a gap in current tort law. By focusing on harasser recklessness rather than intent, and not requiring evidence of “provable” illness, this tort creates a more accessible remedial avenue for victims of harassment.
Alberta Health Services (“AHS”) and two individual plaintiffs sued former Calgary mayoral-candidate Kevin Johnston for persistent harassment during the COVID-19 pandemic.
During his campaign, Johnston made aggressive comments about AHS employees, targeting two employees in particular. On his online show, Johnston stated that he wanted to make one plaintiff’s life “miserable” and wanted to “destroy her life.” He also called her a terrorist, compared her to a Nazi, and made derogatory comments about her husband. Johnston further stated that he had “no respect for anyone at Alberta Health Services and called AHS employees “criminals” who should be arrested for “culpable homicide.”
The plaintiffs alleged defamation, invasion of privacy, assault, and “tortious harassment.”
Legal Context: A Gap in Remedies
Before this decision, there was no tort of harassment, except when the harassment fell under defamation and assault, privacy torts, or intentional infliction of mental suffering. The tort for intentional infliction of mental suffering requires plaintiffs to prove (a) flagrant or outrageous conduct; (b) that is calculated to produce harm; and (c) results in a visible and provable illness.
Further, prior to this case, the Ontario Court of Appeal and British Columbia courts had refused to recognize the existence of the tort of harassment. The Ontario Superior Court had recognized the tort of harassment, but only in the context of online harassment. There was no similar cause of action for offline behavior.
Per Justice Feasby, current tort law failed to provide remedies where plaintiffs could not demonstrate intention by the harasser, or provable illness, or where harassment did not fit into the boxes of privacy, defamation, assault or online conduct. The tort of harassment fills this gap by allowing plaintiffs to sue for harassment without having to prove illness or fit into one of the aforementioned categories. As the four-part test indicates, the tort only requires that the plaintiff demonstrate distress, fear, or a negative impact on quality of life. This broadening allows plaintiffs to seek damages for harassment before it leads to acute mental suffering.
Justice Feasby also noted that Section 264 of the Canadian Criminal Code classifies harassment as a criminal offence, a clear indication that Canadian law regards harassment as wrongful conduct. Justice Feasby found this to be supportive of the creation of a civil remedy to address such behavior.
To date, courts in the Atlantic Provinces have not ruled on the tort of harassment. This case could provide a useful precedent for future plaintiffs seeking damages for harassment. As the law develops, the tort will undoubtedly have applications in the workplace, including expanded paths to compensation for employees facing harassment.