Labour and Employment Law Blog

In Alberta Health Services v. Johnston, 2023 ABKB 209, the Alberta Court of King’s Bench identified a new tort of harassment in response to a Calgary mayoral candidate and talk show host, Kevin Johnston, spreading “misinformation, conspiracy theories, and hate” against Alberta Health Services (AHS) and AHS employees during the COVID-19 pandemic.

The tort of harassment is made out in circumstances where a defendant has:

1. Engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through other means;
2. That they knew or ought to have known was unwelcome;
3. 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
4. Caused harm.

Background

Mr. Johnston strongly opposed public health orders during the COVID-19 pandemic and persistently made vicious statements about AHS and its employees. Mr. Johnston specifically targeted a public health inspector by sharing photos of her and her family, comparing her actions to terrorism and expressing a desire to cause her, and other AHS employees, financial harm.

The Court acknowledged that the existence of a tort of harassment is an unsettled issue in Canada, as courts in Ontario and B.C. have previously rejected the tort of harassment. Some provinces, including Ontario, have recognized the narrower tort of internet harassment which occurs where the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm.

The ABKB noted that it made no sense to have a remedy for harassment that occurs online but not harassment that occurs in person or otherwise offline. In reviewing other established torts the Court identified a gap in the law whereby no existing torts address the harm caused by harassment. The Court also considered the frequency at which restraining orders are granted in response to harassment as evidence of the need for a stronger deterrent to harassing behavior. The recognition of the tort of harassment allows damages to be awarded in circumstances where the Court was previously limited to issuing restraining orders. In its analysis the Court recognized that harassment “disproportionately affects women and members of other marginalized groups.”

The AHS employee was awarded $300,000 in general damages for defamation, $100,000 in general damages for harassment, and a further $250,000 in aggravated damages.

Implication for Employers

For Alberta employers, the new tort of harassment may be relied on by employees and former employees in response to workplace harassment. Even if the employer is not aware of the harassment it could be vicariously liable for the harassment that occurs in the workplace, especially if the employer is aware of the harassment or ought reasonably to be aware of the harassment. This is yet another reason for employers to ensure they have up to date workplace bullying and harassment policies, provide regular training on bullying and harassment, respond quickly to any incidents of workplace bullying or harassment and maintain a culture of open communication and awareness of employee morale. This new tort may create a responsibility for government employers, similar to AHS, to bring an injunction on behalf of employees where an injunction is necessary to protect employees’ right to work without harassment.

On the positive, employers may be able to rely on the tort of harassment in circumstances where a former employee engages in harassment of representatives of the employer. For example, harassment of human resources employees post-termination of employment.

In B.C., the courts have not yet recognized a tort of harassment. However, workplace harassment can form the basis for a constructive dismissal complaint, WorkSafe BC complaint and potentially a human rights complaint if the harassment is related to a prohibited ground in the Human Rights Code.