Casual Legal: New Tort of Harassment in Alberta
By Andrew Skeith
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider
In a recent decision of the Court of King’s Bench, Alberta Health Services v Johnston, 2023 ABKB 209, the Court has recognized, for the first time, the existence of a free-standing tort of harassment.
Johnston involved a lawsuit brought against Kevin J. Johnston, a 2021 mayoral candidate for the City of Calgary, by Alberta Health Services (“AHS”) and two AHS employees. Mr. Johnston hosted an online talk show during which he would regularly discuss conspiracy theories, spread misinformation, and make controversial statements about numerous individuals and entities. Some of his comments pertained to AHS and two specific AHS employees.
The Plaintiffs sued Johnston in defamation, breach of privacy, assault, and most importantly, harassment.
Justice Feasby decided it was appropriate to recognize a new tort of harassment as existing torts do not adequately address harassing conduct. He noted the tort of defamation is not sufficient as it is only actionable in respect of statements that meet the definition of being defamatory, which is not the same as conduct or statements that are repeatedly harassing. Further, Justice Feasby noted that the tort of intentional infliction of mental suffering may not be sufficient in cases of harassment, as harassment will not always give rise to a provable illness on the part of the individual being harassed.
Based on this reasoning, the new tort of harassment was created. Justice Feasby articulated the following legal test, where a person has committed the tort of harassment if 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.
This decision is of significance to municipalities, as harassing conduct is something many municipal employees and elected officials experience from time to time. While the facts in this case were particularly egregious, this tort may provide municipalities with one more tool in their legal toolboxes to deal with harassment.
To access Alberta Municipalities Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.
DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.