The Alberta Court of Kings Bench recently created a new tort and a new avenue of recovery for harassment claims in Alberta. This decision raises the question of whether a similar process will be adopted by courts in British Columbia.
In Alberta Health Services v. Johnston, 2023 ABKB 209 (“Johnston”), the Plaintiffs, Alberta Health Services (“AHS”) and two of its employees claimed that they were defamed and harassed by Defendant, Kevin Johnston. Mr. Johnston was a former mayoral candidate in Calgary’s 2021 municipal election and an online talk show host.
During the Defendant’s mayoral run, he made a series of false statements against AHS and its two employees primarily related to their handling of the Covid-19 pandemic. Examples of his statements included:
- “AHS has gone out of their way to commit the following crimes… criminal trespass, criminal harassment, extortion, intimidation, and terrorism…. Obviously, we’re going to put their names out in public… we’re going to talk about them…. We are going to …bring these criminals who work for AHS to justice…they are going to go to prison, these are people who have committed heinous crimes against the people of Calgary and I’m not going to quit until they are in jail.”
- “…we’re going to arrest you for culpable homicide and then we’re taking your houses and bank accounts, you’re not getting them back…You’re just following orders? Didn’t work for the Nazis either…We’re going to have Nuremburg [sic] trials in Calgary folks, that’s what’s happening.”
In light of these public statements made by the Defendant, the Plaintiffs commenced a civil action against him in defamation. Further, the Plaintiffs asserted that the Defendant’s threatening and abusive conduct constituted “tortious harassment” an invasion of privacy, and assault.
With respect to the defamation claims, the Court determined that as a governmental actor, AHS could not sue in defamation. The Court further determined that one of the two individual Plaintiffs met the test for defamation and thereby allowed that claim to proceed.
The Court was then left to decide whether a tort of harassment should be recognized in Alberta. In deciding, the Court acknowledged previous Canadian cases that opined on the issue such as the 2019 Ontario case of Merrifield v. Canada v. Canada (Attorney General), 2019 ONCA 205. In the Merrifield case, the Ontario Court recognized that a tort of harassment could exist in the right circumstances but those circumstances did not exist within the Merrifield action. Similarly, in the 2023 British Columbia case of Ilic v. British Columbia (Justice), 2023 BCSC 167 (“Ilic”) BC Court explicitly stated that “there is no recognized tort of harassment.”
Despite the prior cases that declined to acknowledge the tort of harassment, the Alberta Court blazed its own path forward. A tort of harassment now exists as a cause of action in Alberta where that person has:
- engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or other means;
- that person knew or ought to have known it was unwelcome;
- which impugns 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.
Using the newly created tort, the Court determined that the Defendant, Mr. Johnston, committed harassment against one of the individual Plaintiffs. The Court awarded that Plaintiff general damages of $300,000 for injury to her reputation, $100,000 in general damages for harassment, and $250,000 for aggravated damages. The Court also issued permanent injunctions restraining the Defendant’s activities in relation to AHS and the individual Plaintiff.
The creation of the new tort of harassment opens up a new avenue for harassment claims in Alberta and marks the first time harassment has been recognized as a general tort in Canada.
The tort of harassment has not yet been recognized in British Columbia. However, with the Alberta court’s decision in Johnston, it could be only a matter of time before a BC court revisits the tort of harassment as well. We will continue to monitor for further developments in this area.
Currently, various avenues for harassment-based claims and potential liabilities already exist in British Columbia. Harassment has been recognized under the Canadian Criminal Code. Harassment-based claims may be pursued in British Columbia under the Human Rights Code where the harassment is based on grounds protected by the legislation. Employers also have obligations under the British Columbia Workers Compensation Act to take steps to prevent bullying and harassment in the workplace, and a mental disorder arising from workplace harassment may ground a claim for compensation under the Workers Compensation Act. Regardless of whether the tort of harassment is ever accepted in BC as a cause of action that may be pursued in court, employers can take steps to limit the risk of harassment claims and liability by ensuring they have well-drafted harassment, discrimination and bullying policies in place and by ensuring that they provide quality training on these policies for all employees, supervisors and managers.
If you have any questions about this article, please do not hesitate to contact the author or your Harris lawyer.