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[1], 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.
