Alberta’s New Tort of Harassment

The Alberta Court of King's Bench (Court) created a new common law tort of harassment in Alberta Health Services v. Johnston (Alberta Health).

Background Facts

Alberta Health has a unique procedural history. It arose out of a default judgment in which the Chambers Justice referred the matter to a special chambers hearing. The purpose of this hearing was, among other things, to determine whether the causes of action alleged, including the tort of harassment, were sufficiently made out to grant the application for default judgment.

This case originally dealt with the actions of the defendant, a former mayoral candidate and online talk show host, who “spewed misinformation, conspiracy theories, and hate,” according to the Court. The defendant specifically directed such conduct against Alberta Health Services (AHS) and certain of its employees. AHS and the individual plaintiffs sought damages and a permanent injunction against the defendant on the basis of various torts including defamation, invasion of privacy, assault and harassment.

The Court rejected: (i) AHS’ defamation claim on the basis that public entities cannot bring defamation claims, (ii) AHS' and the plaintiffs' claim related to the tort of assault, and (iii) the claim advancing the tort of invasion of privacy, noting that Canadian law has not yet generally recognized such a tort per se. In this case, the defendant copied photos from one of the individual plaintiff’s unlocked social media accounts, which was public. As a result, while it was held that the use of the plaintiff’s images and statements about her and her family were problematic, it did not ground any existing privacy cause of action as doing so would be putting a “square peg in a round hole.”

The Tort of Harassment

The Court undertook an analysis of existing causes of action and concluded that those causes of action, such as defamation, assault, intimidation, and others, did not address the harm occasioned in this case.

The Court recognized that the law in Canada regarding the tort of harassment is mixed. It acknowledged that several decisions assert the existence of the tort of internet harassment, but not a broader tort of harassment. Justice Feasby held that while there is an established narrower tort of internet harassment, that limited tort made “no sense” because the mode of harassment — using the internet — should not determine whether harassment is actionable. The Court also recognized that harassment disproportionally affects women and members of other marginalized groups.

Critically, Justice Feasby noted that harassment is a crime under section 264 of the Criminal Code and that the defendant already pleaded guilty to criminal harassment for the very same statements that were the subject of the civil proceeding. Justic Feasby recognized that not every criminal offence has, or should have, an analogue in tort law. Still, he held that it was reasonable to question whether harassment is also something for which a civil remedy should exist.

The Court also analyzed the doctrinal basis on which to create a new tort of harassment. The analysis included the consideration of restraining orders, which are routinely granted, emanating from the Court’s inherent jurisdiction. Justice Feasby held that recognizing the tort of harassment allows damages to be awarded in circumstances where the Court now can only issue restraining orders. This recognition also provides the Court with an additional tool to redress the problem of harassment by adding the power to award damages in appropriate cases, which he held was “long overdue.”

Test for the Tort of Harassment

Based on an examination of the jurisprudence, the Court stated that a defendant has committed the tort of harassment where a person has:

1. Engaged in repeated communications, threats, insults, stalking or other harassing behaviour in person or through other means.

2. The person knew or ought to have known that such action was not welcome.

3. Those actions 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.

4. Caused harm.

Ultimately, the Court awarded one of the individual plaintiffs C$300,000 in general damages for defamation, C$100,000 in general damages for harassment and a further C$250,000 in aggravated damages. The Court also granted a permanent injunction restraining the defendant from, among other things, obstructing or interfering with AHS’ efforts to fulfill its public duties and harassing AHS employees. The defendant is still at liberty to criticize Alberta’s health policies or actions.

It should be noted that a Notice of Appeal has been filed in this matter. Given the mixed jurisprudence and novelty of the issues, there is a distinct possibility that this matter will be heard by the Supreme Court of Canada. However, this new civil cause of action, if upheld, will provide an added mechanism to assist those affected by harassment and dissuade such behaviour. Courts in other provinces may also look to this Alberta decision as a basis for recognizing the tort of harassment in their respective jurisdictions.

For more information, please contact:

Dalton W. McGrath, K.C.        +1-403-260-9654
Michael O’Brien                      +1-403-260-9753
Robel Sahlu                             +1-403-260-9604

or any member of our Litigation & Dispute Resolution group.