July 18, 2023
by Israel Foulon Wong LLP

In the recent case of Alberta Health Services v. Johnston, 2023 ABKB 209 (“AHS”), the Alberta Court of King’s Bench (the “Court”) recognized a new tort: the tort of harassment. While harassment has been a crime under the Criminal Code for quite some time, the Court’s recognition of harassment as a civil tort is a new development. 

The AHS case involved former mayoral candidate, Kevin J. Johnston (“Johnston”), who, during his mayoral campaign, broadcasted misinformation, conspiracy theories, and hate that was mostly directed at the plaintiffs, Alberta Health Services and a public health inspector employed by the organization.  For instance, Johnston repeatedly spoke about the public health inspector, mentioning her by name and shared pictures of her and her family that he found on her publicly accessible social media accounts.  Johnston used pejoratives like “terrorist” and “fascist” when speaking about her, and often stated his intention was to make her miserable and to destroy her life. The plaintiffs sued Johnston, alleging that his threatening and abusive conduct constituted, among other things, “tortious harassment.”

The Court held that there was not yet a tort of harassment, but the tort should be established for the following reasons:

• harassment was already a crime under the Criminal Code, which supported the question of whether a civil remedy should also exist to address such wrongful behaviour;
• harassment, as a common law tort, would not prevent the legislature from creating a statutory cause of action for harassment or from deciding that harassment should be non-actionable (should it choose to do so);
• the Court already routinely granted restraining orders to prevent harassment, which indicated that harassment was a justiciable issue; and
• the tort of harassment would fill a gap in the law, as the current torts available to address harassment-type behavior (such as defamation, assault, various privacy torts, etc.) were limited in their scope and could not address the harms caused by harassment.

The Court also noted that the Ontario Court of Appeal (the “ONCA”) already recognized a narrower common law tort of “internet harassment,” which was contingent on harassment done online.  However, the ONCA had refused to acknowledge the broader independent tort of harassment.  The Court held that the ONCA’s recognition of the narrower tort of internet harassment did not make sense when the law did not also provide a remedy for harassment that took place offline.  It was clear to the Court that harassment could take many forms both online and offline, and while online harassment was an important issue, the Court held that so too was ‘old-fashioned, low-tech harassment.”

The Court therefore held that an independent tort of harassment was needed, and held the new tort required a four-part test.  The tort of harassment is made out where:

1. a defendant engages in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through other means;
2. the defendant knew or ought to have known the conduct was unwelcome;
3. the defendant’s behaviour impugns the dignity of the plaintiff, would cause a reasonable person to fear for the plaintiff’s safety or the safety of their loved ones, or could foreseeably cause emotional distress; and
4. the alleged acts have caused harm.

The Court held that Johnston’s actions met the test for harassment and ordered $100,000 in general damages against Johnston for committing the tort, as well as $300,000 in general damages for defamation and $250,000 in aggravated damages payable to the AHS public health inspector.  Unfortunately, the Court did not provide much insight into how damages for harassment ought to be determined.  

Takeaways for Employers

While Ontario has not yet recognized a broader tort of harassment, the AHS case is indicative of a likely trend that the independent tort of harassment will eventually be recognized by the Ontario courts, and employees will be able to bring similar civil actions in Ontario.

It is vital for Ontario employers to ensure that their business has a properly vetted and up-to-date harassment policy that sets out how harassment complaints should be reported and how they will be investigated.  Employers are reminded to take all reports of harassment seriously and to investigate them promptly and properly.  If this tort were to be recognized in Ontario, employers should expect to see a significant up-tick in these types of claims being pursued in the civil courts.

Contact us today to ensure your business’ harassment policy is up to date or if you require assistance in investigating harassment complaints.