A recent decision by the Alberta Court of King’s Bench in Alberta Health Services v Johnston 2023 ABKB 209 has established a new independent tort of harassment in civil law. This makes Alberta the first province in Canada to recognize a new cause of action that allows plaintiffs to seek damages and injunctions for repeated and unwelcome conduct that impugns their dignity, causes them fear or emotional distress, or harms their reputations.
Summary of Johnston
The case of Johnston involved a social media content creator who targeting Alberta Health Services and harassed two of its public health inspectors with threats, insults, and false accusations. The court found that the defendant, Kevin Johnston, had engaged in repeated and unwelcome conduct that impugned the dignity of the inspectors, caused them to fear for their safety and their loved ones, and caused them emotional distress. The court adopted a four-part test to establish the tort of harassment:
- the defendant engaged in repeated communications, threats, insults, stalking or other harassing behaviour in person or through other means;
- the defendant knew or ought to have known that the conduct was unwelcome;
- the conduct impugned 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 foreseeable cause emotional distress; and
- the conduct caused harm.
The court awarded the harassed inspector $100,000 as damages for harassment, $300,000 for defamation damages, $250,000 for aggravated damages and enhanced cost; and further granted a permanent injunction restraining the defendant from making any further defamatory or harassing statements about the plaintiffs.
Emergence of the Tort of Harassment
The legal response to harassment in Canada has been inconsistent and fragmented, with no clear and comprehensive legal framework to address harassment as a civil wrong. Traditionally, Canadian law focused on addressing harassment through criminal legislation and workplace regulations. Different laws and remedies may apply depending on the context, the parties involved, legislation, and the jurisdiction where the harassment occurs.
Prior to Johnston, the Ontario Court of Appeal (ONCA), in Merrifield v. Canada (Attorney General) 2019 ONCA 205, delivered a landmark decision that rejected the existence of a tort of harassment in Ontario, overturning the trial judge’s decision which granted the plaintiff $100,000 in general damages and $41,000 in special damages. The ONCA held that there was no basis to recognize a new tort of harassment in Ontario since no Canadian Court had ever accepted the existence of a tort of harassment, and the current law already provided adequate remedies for victims of harassing conduct under existing torts like intentional infliction of mental suffering, defamation, invasion of privacy, and negligence.
In 2021, the Ontario Superior Court (ONSC) issues a groundbreaking decision in Caplan v. Atas 2021 ONSC 670 that recognized a new tort of internet harassment on Ontario, and awarded each plaintiff $250,000 in general damages, $50,000 in punitive damages for the internet harassments, and further granted a permanent injunction restraining the defendant from posting any further statements about the plaintiffs.
However, the court in Johnston justifies the recognition of a tort of harassment on the basis that it makes no sense to have a narrower tort of internet harassment without having a general tort of harassment; and further on the following grounds:
- The existence of the criminal offence of harassment indicates that harassment is wrongful, and suggests expanding the scope of legal remedies to include the opportunity for victims of harassment to seek civil redress.
- The Alberta Legislature could create a stand-alone statutory right of action for harassment, but it has not done so.
- The Alberta Court of King’s Bench regularly grants restraining orders preventing harassment, which is indicative that harassment is a justiciable issue. Awarding damages in appropriate cases is long overdue.
- This fills a gap in the law, as no existing tort fully addresses the harm caused by harassment.
The Court’s decision in Johnston sets forth a definition of harassment as “unwanted conduct that is offensive, threatening, or intimidating and persists over time”, and encompasses a wide range of behaviours, including stalking, cyberbullying, verbal abuse, and other forms of persistent and distressing conduct that significantly impact the victim’s emotional well-being and quality of life.
Implications of the Decision in Johnston
As Johnston gains traction, it could potentially influence courts in other provinces to follow suit and recognize the tort in their jurisdictions. The legal precedent set by the Alberta court serves as a beacon for other courts, encouraging them to address the gaps in existing legislation and extend legal protection to victims of harassment.
Also, victims are empowered to seek civil remedies and hold their harassers accountable for the harm caused. Prior to this decision, victims often faced significant challenges in pursuing legal action outside of the realm of criminal law. The recognition of the tort of harassment provides victims with a legal framework to address their grievances and seek appropriate compensation. The decision also acknowledges that harassment can have severe emotional and psychological effects on individuals, even if it does not result in physical harm. Victims will now have the opportunity to show evidence of emotional distress, loss of income, and other damages suffered as a direct result of the harassment they endured.
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