In the decision of Alberta Health Services v Johnston, 2023 ABKB 209 (“AHS v Johnston”), an Alberta court established a new tort of harassment.
Alberta Health Services (“AHS”) and two named individual plaintiffs sued the Defendant, Kevin J. Johnston, for statements he made during his mayoral campaign in Calgary and on his online talk show. The Plaintiffs alleged defamation, invasion of privacy, assault, and “tortious harassment”.
The public statements made by Mr. Johnston include:
- “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.”
- “We are going to be utilizing the law to bring these criminals who work for AHS to justice, and believe me, 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.”
- “I intend to make this woman’s life miserable, I intend to destroy this woman’s life like she has destroyed the lives of Calgarians […]”
Mr. Johnston engaged in rants about one of the named individual plaintiffs (the “Individual Plaintiff”), describing her as a terrorist and comparing her to a Nazi. These statements were untrue.
Defamation, Invasion of Privacy, and Assault
The Alberta Court of King’s Bench (the “Court”) dismissed the defamation claim by AHS, holding that unelected government bodies do not have legal capacity to maintain an action in defamation. However, the Court found Mr. Johnston defamed the Individual Plaintiff.
Further, the court rejected claims Mr. Johnston committed the tort of “invasion of privacy” by finding and broadcasting images of the Individual Plaintiff, her family, and making attempts to publicize the addresses of other AHS employees. While the Court noted that there is no general tort of “invasion of privacy”, there are specific privacy-related torts, including “intrusion upon seclusion” and “public disclosure of private facts”. A common requirement among these privacy torts is that the information misused must have been private in the first place. Mr. Johnston copied the Individual Plaintiff’s photos from her public social media accounts. The Court noted that use of images from a public social media account cannot ground a claim for breach of a privacy tort.
Additionally, the Court rejected a claim for assault, as the threats made by Mr. Johnston were not imminent. The threats largely outlined his intention to prosecute and jail the Individual Plaintiff if he became Mayor of Calgary, which, if successful, would have been months after the statements were made.
Tort of Harassment
The Plaintiffs also alleged that Mr. Johnston committed the tort of harassment, through his many aggressive statements. The Court recognized that both the Ontario Court of Appeal and British Columbia cases have refused to recognize the existence of this tort. However, recent lower court decisions in Ontario have embraced it.
A key question before the court in AHS v Johnston was whether the new tort of harassment would fill a gap in the law that left injured parties without a legal remedy among existing torts. Given harassment is a crime prescribed in the Canadian Criminal Code, clearly such conduct is wrongful. Also, Alberta courts regularly grant restraining orders preventing harassment, indicating harassment is a justiciable issue.
Notwithstanding the foregoing, the Court observed that existing tort law does not address the harm caused by harassment. Defamation and assault are limited to false statements causing reputational harm and imminent threats of physical harm, respectively. The privacy torts only address harassment where there was a reasonable expectation of privacy. The Court noted that in Ford v Jivraj, 2023 ABKB 92 (“Ford”), the Court found harassment was a logical extension of the existing tort of “intentional infliction of mental suffering”. The mental suffering tort requires plaintiffs to prove: (a) flagrant or outrageous conduct; (b) that is calculated to produce harm; and (c) results in a visible and provable illness. However, the court in AHS v Johnston disagreed with Ford, reasoning that the mental suffering tort left a gap in remedies. The Court also indicated that harassers often lack the required intention in their conduct, and victims of harassment often engage in self-preserving avoidance (e.g., quitting a job, changing residence, quitting social media) so that no visible or provable illness arises.
Accordingly, the Court in AHS v Johnston decided to recognize the new tort of harassment, holding that a defendant commits the tort of harassment where they have:
- engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through or other means;
- that they knew or ought to have known was unwelcome;
- which impugn 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; and
- caused harm.
Applying the test, the Court found Mr. Johnston liable for harassment of the Individual Plaintiff. He called her a terrorist and fascist, mocked her and her family while showing pictures of them, and his statements could be reasonably interpreted as inciting his followers to violence against her. He knew or ought to have known this was unwelcome. This behaviour would cause a reasonable person to fear for their safety or safety of their loved ones. She feared to leave her own home, and she had to install a new home security system.
The Court awarded the Individual Plaintiff $300,000 in general damages for defamation and $100,000 in general damages for harassment. While the Individual Plaintiff did not demonstrate an illness, she feared for her safety and the safety of her children. The harassment affected the way she lived her life, so the Court decided this emotional distress and negative impact on quality of life should be compensated through a significant damages award.
This is the first Alberta case recognizing a standalone common law tort of harassment. AHS v Johnston parts with case law in other jurisdictions, seeking to fill a gap in remedies for parties suffering from harassment. In distinguishing from the mental suffering tort, the new tort of harassment does not require intention; as recklessness is sufficient on the part of the harasser. Further, a plaintiff does not need to establish a “provable” illness; rather, damages will compensate for emotional distress, fear, and the negative impact on quality of life.
Employers in Alberta should take note of this decision. This new tort will likely ground future claims of workplace harassment, with potential for vicarious liability of the employer. Accordingly, employers must remain diligent in dealing with allegations of harassment by supervisors and co-workers. This includes keeping up-to-date anti-harassment and bullying policies in place, along with regular training on those policies.
We will be following the development of the tort of harassment in Alberta and will keep readers updated as this appears in new contexts.
The author would like to acknowledge the support and assistance of Cameron Penn, articling student at law.