Across Canada, the treatment of harassment as an independent tort under the law can be a controversial topic. Courts often explain that their reasoning in refusing to recognize a new tort of harassment is that it would constitute a significant change in the law, and there are other legal avenues to pursue such a claim. However, the dynamic nature of harassing behaviour does not always fit neatly into existing causes of action. Recognizing this, the Court of King’s Bench of Alberta has taken a bold step forward in establishing an independent tort of civil harassment in the province.

Case Involved Public Health Officials and a Previous Mayoral Candidate

In Alberta Health Services v. Johnston, the two plaintiffs worked as public health inspectors for Alberta Health Services (“AHS”). During the COVID-19 pandemic, it was their job to educate Albertans about public health measures and to enforce orders of the Chief Medical Officer of Health.

The defendant was a resident of Calgary who hosted an online talk show and was a prodigious creator of social media content. He considered himself a spokesperson for Albertans opposed to public health measures intended to mitigate the COVID-19 pandemic. He had gained some notoriety in 2021 as a candidate in Calgary’s mayoral race.

Defendant Made Inflammatory Public Statements About the Plaintiffs

The dispute at hand stemmed from comments made by the defendant in several hours of video he posted online. In the video clips, the defendant made threatening comments towards the AHS and accused the health authority of criminal behaviour. He also targeted AHS employees, accusing them of various crimes and threatening to harm them financially.

In several of his online tirades, the defendant singled out one of the plaintiffs in particular, Ms. Nunn. Referring to her efforts to enforce public health measures as a public health inspector, the defendant compared her to the Nazis. He often engaged in rants on his online show in which he belittled Ms. Nunn and her family, and accompanied his comments with photos of her and her husband and children.

Plaintiffs Bring Claim for Defamation and “Tortious Harassment”

On June 3, 2021, the plaintiffs filed a Statement of Claim, starting this litigation. In their claim, the plaintiffs asserted that they were defamed by the defendant and sought a significant damages award and a permanent injunction barring the defendant from making defamatory statements.

Further, the plaintiffs asserted that the defendant’s threatening and abusive behaviour constituted “tortious harassment,” an invasion of privacy and assault.

Court Notes That It Regularly Grants Restraining Orders Preventing Harassment

Turning to the issue of whether it should establish a new independent tort of harassment, the Court noted that courts across the province hear applications for restraining orders nearly every day. Often, these restraining orders seek to prevent one person from harassing another. The harassment can occur in myriad ways — it may be conducted online, or it could involve a physical act like stalking. And harassment can happen in a variety of settings — in an intimate relationship, in the workplace, or in another public space.

The Court concluded that the fact that restraining orders for harassment are frequently granted implies that harassment is a justiciable issue. Creating a new independent tort that would apply to the wrong being restrained in these cases is an incremental and needed change to the law.

Court Says That New Tort of Harassment Would Fill a Gap in the Law

Next, the Court explained its rationale for concluding that a new independent tort of harassment would fill a gap in Alberta law. The Court noted that no existing tort fully addressed the harm caused by harassment. For example, in the present case, the torts of defamation and assault only capture harassing behaviour if there are other circumstances present, such as reputational damage or threats of physical harm.

The Elements of the New Tort of Harassment

Having provided its justification for establishing a new independent tort of harassment, the Court outlined the factors that would constitute harassment. A person has committed a tort of harassment where they have:

• 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.

Court Holds That Defendant Had Committed Tort of Harassment

Applying these criteria to the facts of the present case, the Court held that the defendant had harassed Ms. Nunn. In coming to its conclusion, the Court highlighted the following evidence:

• He repeatedly spoke about Ms. Nunn in segments on his online talk show;
• He used pejoratives like “terrorist” and “fascist” to describe her; and
• He repeatedly mocked her and her family while showing pictures of them he had gathered from her social media accounts.

Further, the Court noted that the defendant’s comments could reasonably be interpreted as inciting his followers to violence against Ms. Nunn and her family. This behaviour was harassing, and the defendant knew or ought to have known it was unwelcome.

An Important Takeaway for Alberta Workers

One particularly important outcome of this decision relates to workers who are the victims of harassing behaviour in the workplace. Previously, there were three main avenues available to a worker to seek recourse for harassment in the workplace:

• If the harassment involved a protected characteristic under Alberta’s Human Rights Code, file a complaint with the Alberta Human Rights Commission.
• Filing a claim for workers’ compensation if they worked in an industry and occupation covered by Alberta’s Workers’ Compensation Act.
• Bringing a constructive dismissal complaint if they had to quit because of a toxic work environment.

In addition to these remedies, Alberta workers now also have the option of filing a claim against their employer alleging vicarious liability for harassment in the workplace.

Contact DBB Law in Calgary for Trusted Guidance Navigating Your Civil Claim

The trusted litigation lawyers at Dunphy Best Blocksom LLP work closely with clients to provide legal advice tailored to each unique situation. If you are experiencing harassing behaviour, our litigation lawyers can advise you on your rights and offer forward-thinking, strategic solutions to reach a resolution. If the harassment occurred in the workplace, our experienced employment lawyers can assist you in protecting your rights and deciding on the best route to take in order to obtain the best possible outcome. To speak to one of our lawyers about your harassment or employment law issue, contact us online or call us at 403-265-7777.