Special thanks to our articling student Ravneet Minhas for contributing to this update.
The Alberta Court of King’s Bench recently became the first Canadian province to recognize the tort of harassment. This development is notable in the face of recent case law out of both British Columbia and Ontario that has declined to recognize a general tort of harassment.
For example, the Ontario Court of Appeal in Merrifield v Canada (Attorney General), 2019 ONCA 205 overturned the finding of a trial judge who found that the tort of harassment existed in Ontario. The Court’s analysis explained that significant changes to the law should be left to the legislature, and the role of the courts is only to make incremental changes to the law. Similarly, British Columbia courts have also resisted recognizing the tort of harassment (Stein v Waddell, 2020 BCSC 253, Anderson v Double M Construction Ltd, 2021 BCSC 1473).
The recognition of a general tort of harassment by the Alberta Court of King’s Bench, coupled with case law post-dating Merrifield, may lead other Canadian courts to rethink their position on this issue. As discussed further below, Justice Feasby in Alberta Health Services v Johnston, 2023 ABKB 209, recognized the tort on the basis that the harm in question could not be adequately addressed by any existing torts (Nevsun Resources Ltd v Araya, 2020 SCC 5 at para 123). As such, where the facts of a case demand the creation of a novel legal remedy, other Canadian courts may recognize a similar tort of harassment.
Alberta Establishes a Tort of Harassment
In Alberta Health Services v Johnston, Alberta Health Services (AHS) and two of its senior employees sued Mr. Johnston for defamation, invasion of privacy, assault and harassment. Mr. Johnston, an online talk show host and mayoral candidate, used his talk show to frequently criticize the AHS’s response to the COVID-19 pandemic. He repeatedly alleged an intention to prosecute AHS employees for “heinous crimes”, and stated that his goal was to “bankrupt AHS members”. He further referred to the AHS as Nazis and suggested that they should be subject to violent attacks. He particularly targeted one AHS employee, Ms. Nunn, by sharing photos from her social media accounts, attacking her family and alleging that she was an alcoholic.
The Court awarded Ms. Nunn $300,000 in general damages for defamation, $100,000 in general damages for harassment, and $250,000 in aggravated damages. While the Court held that AHS was not eligible for damages, both Ms. Nunn and AHS were granted permanent injunctions restraining Mr. Johnston.
In recognizing the tort of harassment, Justice Feasby canvassed the existing case law across the country and found that no existing torts squarely addressed the harms caused by the harassment. He found that while defamation and assault share some elements with harassment, they fall short of clearly addressing the type of harm suffered by Ms. Nunn. Similarly, the new privacy torts only address harassment where there is a reasonable expectation of privacy.
Justice Feasby also noted that the recognition of the tort was merely a reflection of what Alberta courts have already been doing in the context of granting restraining orders.
In his decision, Justice Feasby defined the tort of harassment to exist where a defendant has:
- Engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through other means;
- That he knew or ought to have known was unwelcome;
- Which impugn the dignity of the plaintiff, would cause a reasonable person to fear for her safety or the safety of her loved ones, or could foreseeably cause emotional distress; and
- Caused harm.
Legal Remedies for Harassment Claims
Despite only one Canadian province recognizing the general tort of harassment, there are other avenues that victims of harassment-related claims may pursue. Below is a summary of those avenues and practical considerations for employers navigating a claim of harassment.
1. Human Rights Claims
All jurisdictions in Canada prohibit harassment and discrimination based on protected grounds of discrimination, such as sex, race, disability or age. Victims may file a complaint or application with the relevant provincial human rights commission or tribunal. This avenue is also available to employees in the workplace, and employers should be cognizant of their human rights duties and obligations to their staff, as well as their potential vicarious liability tied to the actions of their employees.
2. Occupational Health and Safety Claims
Harassment is also prohibited under provincial health and safety legislation, and employers have a duty to maintain a workplace free from harassment and violence. For example, in Ontario, the Occupational Health and Safety Act defines “workplace harassment” as “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or workplace sexual harassment”. Employers should ensure they have proper workplace violence and harassment policies and procedures in place to adequately respond to complaints of harassment and violence, and that their workforce is trained on these policies. Regarding bullying in the workplace, employers should also consider drafting a stand-alone cyberbullying policy to synergize with existing health and safety policies.
3. Harassment Under the Criminal Code
In more extreme cases where the conduct rises to the level of criminal harassment, a victim may file a complaint with the police. The Criminal Code of Canada defines criminal harassment as follows:
“No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.”
In addition, in the context of cyberbullying, recent Criminal Code amendments make it easier for prosecutors to charge perpetrators with harassment-related offences. For example, sharing intimate images of someone without their consent is now a criminal offence that can result in a sentence of imprisonment, as recently occurred in Manitoba in R v SA, 2022 MBPC 28.
4. Cyberbullying Legislation
In addition to the remedies outlined above for harassment broadly, victims of cyberbullying in Nova Scotia may have other civil remedies available to them. In 2017, Nova Scotia enacted An Act Respecting the Unauthorized Distribution of Intimate Images and Protection Against Cyber-bullying, S.N.S. 2017, c. 7, which specifically addresses cyberbullying. This legislation is the first of its kind and enables victims of cyberbullying to apply to the Nova Scotia Supreme Court for a cyber-protection order. This order can provide several remedies to victims of cyberbullying, including no-contact orders, removal of images and communications from social media, and compensation.
In summary, employers should be aware of recent legal developments that have recognized the tort of harassment in Alberta, as well as other legal remedies that may be available to victims of bullying and harassment. Other provinces may follow suit and recognize similar torts of harassment and/or internet harassment. Employers should also be cognizant of their vicarious liability for the conduct of their employees. Communications exchanged outside of the workplace do not preclude liability for employers.
We strongly recommend that employers review their existing workplace harassment and violence policies and procedures to comply with their ongoing legal requirements. In addition, we recommend drafting a stand-alone cyberbullying policy that creates procedures for addressing complaints of workplace cyberbullying.
For assistance in drafting or reviewing your health and safety policies to ensure compliance with your statutory obligations, please contact a member of our team.
 The Ontario Superior Court has asserted the recognition of the more narrow tort of internet harassment (40 Days for Life v Dietrich et al, 2022 ONSC 5588; Caplan v Atas, 2021 ONSC 670; 385277 Ontario Ltd v Gold, 2021 ONSC 4717).