A Review of the New Tort of Harassment in Alberta

This article summarizes the case of Alberta Health Services v Johnston, 2023 ABKB 209 (“Johnston”), a decision from the Court of Kings’s Bench which establishes a new tort of harassment in Alberta.

This case arose due to Kevin Johnston (the “Defendant”) repeatedly and frequently harassing a public health inspector (the “Plaintiff Employee”) employed by Alberta Health Services (“AHS”).

Factual background

The Defendant, a former 2021 Calgary mayoral candidate, opposed COVID-related public health measures. Part of how he expressed his discontent with the health restrictions was the harassment of individuals employed to enforce the restrictions. One of these individuals was the Plaintiff Employee, who was turned into the Defendant’s primary target for harassment after she came to inspect the church of Artur Pawlowski for COVID violations.   

The Plaintiff Employee, targeted by the Defendant for no other reason than that of her employment with AHS, endured the Defendant’s harassment to the extent that she feared for her and her family’s safety and well-being.

The Test for the New Tort of Harassment 

In Johnston, Justice Feasby found that for a defendant to have committed the tort of harassment, the following factors must be present:

1.       The defendant engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through other means;

2.       That the defendant knew or should have known was unwelcome;

3.       That harms the dignity of the targeted individual, causes them to fear for their own safety and/or that of their family, or could cause foreseeable emotional distress; and

4.       That actual harm was caused to the targeted individual in at least one of these forms.

In this case, Justice Feasby found that what the Defendant had done to the Plaintiff Employee met all the factors in the test for harassment and ordered the Defendant to pay the Plaintiff Employee $300,000 in general damages for defamation, $100,000 in general damages for harassment, and an additional $250,000 in aggravated damages.

The significance of the new tort of harassment

Justice Feasby’s decision aims to address a legal gap that made it difficult for people facing harassment to find a solution.

For example, the torts of defamation and assault address false statements made to cause reputational harm and imminent threats of physical harm, respectively. However, they are inadequate in situations where someone is harassing you for something that is true, like your employment status, or there is no immediate threat of violence.

Another example is the tort of private nuisance, which only works to protect you if there is a reasonable expectation of privacy that has been breached. In this case, the Plaintiff Employee did not have a reasonable expectation to privacy over people knowing her field of employment.

The tort of intimidation sounds like a promising solution for cases like Johnston, but this tort requires that a threat be made and the recipient submitting to something unwanted because of the threat. However, many cases of harassment do not involve threats and the recipients of harassment do not often ‘give in’ to anything.

The Alberta Human Rights Act allows Albertans to make a human rights complaint only if they are being harassed because of a protected ground such as race, gender, ethnicity, or religion. A person can make a human rights complaint if they are being harassed for the colour of their skin, but not for harassment related to their employment status and responsibilities.  

Likewise, a Workers' Compensation claim related to harassment applies only to harassment within the workplace that results in a recognizable mental health condition or injury.

These solutions address harassment in limited circumstances, but the tort of harassment makes it easier to stop harassment outside of these narrow scopes of protection. The new tort does not require that the harm caused is because of a protected ground, nor does it require that the harassment happens in the workplace. Further, the new tort of harassment does not require a mental illness or injury to occur because of a defendant’s actions.

If you or someone you know is suffering from harassment, the new tort of harassment provides more legal remedies to help stop and prevent harassment. Please do not hesitate to contact one of the lawyers in our Litigation Department to learn more about the tort of harassment and other legal tools at your disposal.  

*Disclaimer: This article is not intended to provide legal advice and is for information purposes only.