In April 2023, the Court of King’s Bench of Alberta released the decision of Alberta Health Services v Johnston, 2023 ABKB 209, which effectively creates a new tort in the Province of Alberta: the tort of harassment.
A tort is a civil wrong committed by another individual that causes a claimant to suffer a loss or harm, which they can then sue that individual over. In order to make out a civil claim in relation to a tort, a claimant must prove, on a balance of probabilities, that the defendant committed the alleged action or failed to take an action that they were required to take. If the claimant succeeds in meeting this burden of proof, and the defendant does not successfully plead a defence, then the defendant is liable to the plaintiff for the resulting damage. Some common law torts include negligence, public disclosure of private facts, assault, false imprisonment, battery, defamation, and now harassment.
In the decision of Alberta Health Services v Johnston, 2023 ABKB 209, the Defendant, Mr. Kevin Johnston, had an online talk show that, according to the Court of King’s Bench, “spewed misinformation, conspiracy theories, and hate”. Mr. Johnston’s commentary targeted the Plaintiffs, Alberta Health Services (AHS) and two AHS employees, Ms. Sarah Nunn, and Mr. Dave Brown. During the COVID-19 pandemic, Ms. Sarah Nunn was responsible for educating Albertans about and enforcing the mandates of the Public Health Act, RSA 2000, c P-37, and the orders of the Chief Medical Officer of Health of the Province of Alberta. In monologues on his online talk show and in interviews with CTV, Mr. Johnston used pejoratives like “terrorist” and “fascist” to describe Ms. Nunn, mocked her and her family while showing pictures from her social media, and made statements that the Court found to have incited his followers to use violence against Ms. Nunn and her family.
Defamation
The Court held that Ms. Nunn’s defamation claim against Mr. Johnston was made out given the facts. Specifically, the Court held that Mr. Johnston did defame Ms. Nunn as an individual based on the “extensive body of video clips adduced by the Plaintiffs and attached as exhibits to their various affidavits.” Although Mr. Johnston did not plead any defence to the defamation claim, the Court held that, regardless, the any defence would have been unsuccessful.
Invasion of Privacy
The Court found that all claims of the tort of invasion of privacy were not made out on the facts. This was mainly because the information that Mr. Johnston used was obtained from Ms. Nunn’s unlocked, public social media accounts, and these accounts did not have a reasonable expectation of privacy given that they were publicly accessible.
Assault
The Court also held that the claims of assault were not made out on the facts.
At common law, the tort of assault requires that the defendant’s conduct caused a reasonable apprehension of imminent physical harm to the plaintiff. In this particular case, Mr. Johnston threatened both Ms. Nunn and an unnamed AHS employee by stating that he intended to have her prosecuted and jailed once he was elected the Mayor of the City of Calgary.
Given that the Mayor of the City of Calgary cannot direct criminal prosecutions, as well as the fact that the threats were not imminent given that the mayoral election was months after the threats were made, the Court held that the tort of assault could not be made out.
Harassment
The main findings in this case surrounded the tort of harassment. The Court canvassed decisions from the Provinces of Ontario and British Columbia, which discussed the tort of harassment as well as the Supreme Court of Canada’s approach to recognizing new torts in Canada. After concluding that the current law supports a right to be free from harassment, but does not currently provide adequate civil remedies to someone who has been the target of harassment, the Court reviewed definitions of the tort of harassment from other jurisdictions and recognized the problems with those definitions.
On behalf of the Court of King’s Bench, the Honourable Justice Feasby defined harassment as “repeated or persistent behaviour” that “creates an oppressive atmosphere”, and further held that the tort of harassment has four elements:
(1) The Defendant engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through or other means;
(2) The Defendant knew or ought to have known the behaviour was unwelcome;
(3) The behavior impugned 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
(4) The behavior caused harm.
On the basis of this definition, the Court held that Mr. Johnston did harass Ms. Nunn.
Remedies
The Court awarded Ms. Nunn a total of $650,000.00 in damages, which was comprised of:
- $300,000.00 for injury to her reputation;
- $250,000.00 in aggravated damages because Mr. Johnston acted with malice, refused to apologize, and maintained that his statements were justified; and
- $100,000.00 in general damages to compensate Ms. Nunn for the emotional distress she suffered and the negative impact on her quality of life.
The Court also granted a permanent injunction against Mr. Johnston to prevent him from continuing his harassment against the Plaintiffs, which was simply an extension of a previous restraining order granted by the Court against Mr. Johnston.
Consequences of this Decision
Although this decision has yet to be considered further, the tort of harassment grants victims of harassment a new avenue for finding justice. While harassment is a criminal offence, not every victim of harassment may be able to find justice through the criminal system due to a variety of factors such as prosecutorial discretion, a higher burden of proof, a reluctance to speak with police or go through the criminal system, ect. Comparatively, the civil system does not present the same barriers or obstacles to victims, and it may allow victims to be compensated for the injuries that they suffer as a result of harassment.
Authors: Hannah A Schmakeit, Student-at-Law, and Megan B Harris, Associate