Alberta is the first Canadian jurisdiction to recognize the tort of harassment, while Ontario and British Columbia have declined to recognize the same tort. In the recent decision Alberta Health Services v. Johnston two issues were considered. First the issue of whether unelected public bodies could bring suits in defamation and secondly whether to recognize the tort of harassment. The case involved an individual defendant who was a candidate for mayor of Calgary in 2021. During his campaign, he frequently criticized Alberta Health Services and a specific employee of Alberta Health Services, who were the plaintiffs in the case. The defendant made targeted attacks against the plaintiff’s referring to them as criminals and making threats of violence as well as personal and financial ruin. The plaintiff’s sued for harassment and defamation.
With respect to the claim of harassment, the court considered the following four points in deciding, contrary to the courts in Ontario and British Columbia, to recognize the tort of harassment.
- The inherent wrongful nature of harassment as it is classified as a criminal act.
- The availability of existing legal remedies in the form of restraining orders, affirming the justiciability of harassment related issues.
- Harassment as a common law tort does not impede the legislature from creating a statutory cause of action or indicating that harassment is non-actionable.
- The inadequacy of the current tort law framework in addressing the harms inflicted by harassment.
The court referenced the criminal definition of harassment in establishing the elements that must be proven to establish the new tort of harassment:
- The defendant engaged in repeated communications, threats, insults, stalking or other forms of harassing behaviour, either in person or through various means;
- The defendant knew, or ought to have known, that their conduct was unwelcome;
- The plaintiff’s dignity was impugned, causing a reasonable person to fear for their safety or the safety of their loved ones or reasonably foreseeing emotional distress as a result; and
- The plaintiff suffered harm as a direct consequence of the defendant’s conduct.
In Alberta Health Services the Court awarded $100,000 in general damages for harassment.
This decision is contrary to a number of British Columbia decisions as well as the Ontario Court of Appeal decision. In British Columbia our courts have concluded that there is no common law tort of harassment in British Columbia or Canada. The Ontario Court of Appeal in Merrifield (2019 ONCA 205) also held that the tort of harassment does not exist in Ontario and they were not persuaded that the tort should be recognized.
The impact of the Alberta Health Services decision is yet to be seen. It is under Appeal so the Alberta Court of Appeal will have an opportunity to weigh into the debate of whether an independent tort of harassment should be recognized or not. The test established by the Court lays the groundwork for litigants in other provinces to continue to push the courts to expand tort law to recognize an independent tort of harassment.