In Alberta Health Services v. Johnston, 2023 ABKB 209, the Court recognized harassment as an independent cause of action. Now Albertans who have been subject to harassment are able to bring a civil action against their harassers. In this case, Justice Feasby awarded the Plaintiff, Sarah Nunn $300,000 in general damages for defamation, $100,000 in general damages for harassment and $250,000 in aggravated damages.

Background 

Sarah worked for Alberta Health Services (“AHS”) as a public health inspector. Sarah, as well as AHS claimed that they had experienced threatening and abusive conduct from Mr. Johnston, a Mayoral candidate in Calgary in 2021.  Mr. Johnston made public defamatory comments about AHS as well as Sarah on several occasions. AHS is responsible for educating Albertans on matters of public health. Mr. Johnston was an outspoken critic of AHS as well as the public health measures that were being implemented as a result of the COVID-19 pandemic. 

On his online talk show, Mr. Johnston made numerous false and inflammatory statements directed at AHS and Sarah specifically. For example, he stated that he had “no respect for anyone at Alberta Health Services” and that he was going to “come at you (AHS) with full vitriol and full malice”. Sarah was the subject of his verbal attacks as well. For example, Mr. Johnston stated that “if you’re friends with this Sarah Nunn person, when I’m Mayor, you’re going to be investigated as well” and that he “intend(ed) to make this woman’s life miserable”.

The Decision 

In coming to the decision that Mr. Johnston had defamed Sarah, the Court further held that the tort of harassment should be recognized. Specifically, Justice Feasby looked to policy arguments to justify this extension of the law. For example, he pointed to the limitations of arguments such as defamation and assault, and how a tort of harassment would fill the gaps in the law. 

Justice Feasby established the elements of the tort of harassment. A defendant has committed the tort of harassment where he has: 

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

The Situation in Ontario 

Unfortunately for complainants situated in Ontario, Ontario Courts have taken a different route. While the Ontario Court of Appeal considered recognizing the tort of harassment in Merrifield v. Canada (Attorney General) 2019 ONCA 205. While the Court did not foreclose the recognition of the tort of harassment in the future, the Court ultimately found such tort did not exist.  Justice Feasby was critical of Ontario’s decision to deny the existence of a general harassment Tort holding that “Alberta courts are not bound by the Ontario Court of Appeal nor should Merrifield be followed”. 

Despite the current situation in Ontario, it is promising that Alberta has extended the law to recognize harassment as a cause of action. In addition, it is positive that the Alberta Court was highly critical of the Ontario Court of Appeal’s reluctance to recognize a general tort of harassment.

Takeaway

This decision has significant positive implications for employees who have been subject to harassment and sexual harassment. Employees in Alberta now have an additional avenue to pursue claims of harassment they experience in the workplace.  This decision will also act as a strong motivator for employers to take harassment prevention seriously, considering the potential price they will have to pay if their employees bring forward a harassment lawsuit. 

While it is uncertain whether Ontario will follow Alberta’s lead, this case represents a positive step for employees and their ability to combat harassment in the workplace.