In Alberta Health Services v Johnston, 2023 ABKB 209, the Court of King’s Bench of Alberta recognized a new tort of harassment.

Background

Alberta Health Services (AHS) and two individual plaintiffs claimed they were defamed by a candidate for mayor of Calgary in 2021 when, during his campaign and on his online talk show, he shared misinformation, conspiracy theories, and hate about AHS and the individual plaintiffs.  They asserted further that he engaged in threatening and abusive conduct that constituted “tortious harassment,” an invasion of privacy, and assault.

The individual plaintiffs are AHS employees who work as public health inspectors and are appointed as “executive officers” under the Public Health Act, RSA 2000 c P-37 (PHA).  Their role is to educate Albertans about and enforce the mandate of the PHA and the orders of the Chief Medical Officer of Health (CMOH), including CMOH orders pertaining to the COVID-19 pandemic.

The court described the mayoral candidate as, among other things, “a self-appointed spokesperson for Albertans who opposed public health measures intended to mitigate the COVID-19 pandemic.”

During the mayoral candidate’s campaign, and on his online talk show, the false statements he made included:

• “All of you are criminals, every single one of you.  I have no respect for anyone at Alberta Health Services.  I’ m going to come at you with everything that I have got.  I’m going to come at you with full vitriol and full malice.  [I] cannot wait to see each and everyone of you suffering… AHS, the WAR IS ON.”

• “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 trials in Calgary folks, that’s what’s happening.”

• The mayoral candidate referred to one individual plaintiff as an “AHS Nazi,” a “terrorist,” a “useless individual,” “a horrible human being,” and an “alcoholic.”   He also stated, “I intend to make this woman’s life miserable, I intend to destroy this woman’s life … she’s going to jail... she’s going to have to fight terrorism charges.”

Decision

The Court of King’s Bench of Alberta:

• Dismissed the defamation claim by AHS against the mayoral candidate after concluding that as a government actor it could not sue in defamation. 

• Held that the mayoral candidate defamed one of the individual plaintiffs, as the test for defamation established by the Supreme Court of Canada was met: the words complained of were published; referred to the plaintiff; and were defamatory, i.e., they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person. 

• Denied the claim that the mayoral candidate committed the tort of “invasion of privacy,” which is not recognized in Canada;

• Noted that privacy-related torts include “intrusion upon seclusion” and “public disclosure of private facts”; however, they require the misused information to be private, which was not the case here as the mayoral candidate copied the individual plaintiff’s photos from her public social media accounts; 

• Denied the claim for the tort of assault (i.e., a threat of imminent physical harm), as the mayoral candidate’s threats against the individual plaintiff and other AHS employees did not constitute such a threat. 

New Tort of Harassment

The court recognized a new tort of harassment and determined that a defendant has committed this tort when they have:

(a) engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through or other means;

(b) that they knew or ought to have known was unwelcome;

(c) 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

(d) caused harm.

The court acknowledged that the Ontario Court of Appeal (OCA) concluded in Merrifield v Canada (Attorney General), 2019 ONCA 205 that although it did not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts, Merrifield did not present a compelling reason to recognize such a tort.  It further acknowledged that courts in British Columbia also have not recognized the existence of a tort of harassment. 

The court was influenced, however, by several decisions of the Ontario Superior Court after Merrifield  was decided that asserted the existence of a tort of internet harassment: 

The idea that there is no general tort of harassment but there is a narrower tort of internet harassment makes no sense.  If there is a tort of internet harassment but not a general tort of harassment, that means that the mode of harassment – using the internet – determines whether harassment is actionable.  While internet harassment is a problem, so too is old-fashioned low-tech harassment.

The court concluded that Alberta courts are not bound by the OCA and that Merrifield should not be followed.  It observed further that the fact that harassment is a crime suggests it is reasonable to ask whether a civil remedy should exist for harassment.

The court acknowledged that a common objection to the proposed creation of a new tort of harassment is that the Legislature can create a statutory cause of action. It responded, however, that the Alberta Legislature has not done so, and the development of a tort of harassment by the judiciary does not prevent the Legislature from creating such a tort. 

The court also observed that the fact that it regularly grants restraining orders to prevent harassment, which are upheld by the Court of Appeal, “indicates that harassment is a justiciable issue”; and that recognizing the tort of harassment, allows damages to be awarded in appropriate cases, a power that is “long overdue.”  The court also argued that existing torts do not address the harm caused by harassment. 

Remedies

The court awarded the individual plaintiff general damages of $300,000 for injury to her reputation; $100,000 in general damages for harassment; and $250,000 for aggravated damages.  It also issued permanent injunctions restraining the mayoral candidate’s activities in relation to AHS and the individual plaintiff.    

Bottom line for Employers

Employers are encouraged to pay close attention to the decision in Alberta Health Services, which departs from the approach taken by other Canadian courts by recognizing a new tort of harassment.  It remains to be seen whether other Canadian courts will revisit their previous rejection of a harassment tort, and whether any court will find employers vicariously liable for such behaviour.  To avoid harassment claims, employers are encouraged to ensure they have well-drafted anti-harassment policies and provide high quality training on these policies for all employees, supervisors, and managers.