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Breaking Barriers: Court of King's Bench Pioneers the Tort of Harassment in Landmark Ruling


Anxious women looking back as she is stalked in a dimly lit garage
Women stalked and harassed in a garage

Breaking Barriers: Court of King's Bench Pioneers the Tort of Harassment in Alberta's Landmark Ruling

Introduction

Justice Colin Feasby (Feasby J.) of the Court of King’s Bench of Alberta made a significant legal development by establishing a new tort of harassment in the province of Alberta. This groundbreaking decision was reached in the case of Alberta Health Services v Johnston, 2023 ABKB 209, which emerged from the highly publicized harassment inflicted by former mayoral candidate Kevin Johnston upon Alberta Health Services (AHS) employees during the peak of the COVID-19 pandemic. Justice Feasby's ruling introduces a tort of harassment, marking a crucial milestone in Canadian law.


An Emerging Tort of Harassment

Feasby J. first considers the discussion and controversy of an emerging tort of harassment in Ontario and BC. The Ontario Court of Appeal in the case of Merrifield v. Canada (Attorney General), 2019 ONCA 205 (Merrifield) concluded that there is no existing tort of harassment in Ontario and that the development of such a tort would require compelling reasons. Similarly, the BC Courts have not recognized the tort of harassment in BC.


However, despite the hesitation expressed in Merrifield, several decisions from the Ontario Superior Court and other jurisdictions have recognized a narrower tort of internet harassment. This recognition of this narrower tort raises questions about the inconsistency of recognizing a tort solely based on the medium used, while denying a tort for the larger context.


Feasby J. then considers Justice Graesser (Graesser J.) decision in the in the case of Ford v Jivraj, 2023 ABKB 92 (Ford), who expressed disagreement with the Ontario Court of Appeal's decision in Merrifield and saw harassment as a logical extension of the existing tort of intentional infliction of mental suffering. While Feasby J. agrees with Graesser J. that Alberta courts are not bound by the Ontario Court of Appeal, he disagrees that the tort of harassment is simply an extension of intentional infliction of mental suffering.


Law of Recognizing New Torts

Feasby J. discusses the law and process for recognizing new torts in Canadian law. According to the Supreme Court of Canada in Nevsun Resources Ltd. v. Araya, 2020 SCC 5 (CanLII), [2020] 1 SCR 166 (Nevsun), the development of the common law occurs when it is necessary to clarify a legal principle, resolve inconsistencies, or keep the law aligned with societal evolution. The judges have the authority to extend existing principles or apply existing remedies to protect rights that are not adequately addressed.


A key consideration in recognizing a new tort is whether the harm in question cannot be adequately addressed by existing recognized torts. The majority opinion in Nevsun emphasizes the need for the new tort to address a specific wrong that lacks sufficient remedies. However, the dissenting opinion takes a more restrictive view, stating that courts will not recognize a new tort when there are adequate alternative remedies, where the tort does not reflect and address a wrong visited by one person upon another, and where the change wrought upon the legal system would be indeterminate or substantial. For a proposed nominate tort to be recognized by the courts, at a minimum it must reflect a wrong, be necessary to address that wrong, and be an appropriate subject of judicial consideration.


Feasby J. also highlights the historical context of the existing torts, which were developed over centuries without adequately recognizing the harms experienced by women and marginalized groups. The author acknowledges that harassment disproportionately affects these groups, and the failure to recognize a tort of harassment in the past does not mean it should not exist.


Justifying Recognition of a Tort of Harassment

Feasby J. then provides his reasoning for why the courts should recognize a tort of harassment:

  • First, harassment is a criminal offense, and the fact that harassment is a crime suggests that it is reasonable to ask whether it is also something for which a civil remedy should exist.

  • Second, he states that while the Alberta legislature has this ability to create a statutory cause of action, the development of common law provides justices with this right to create new rights of actions.

  • Third, the Court of King’s Bench routinely provides restraining order applications for harassment. While the doctrinal basis for granting restraining orders in cases of harassment is unclear, various legal justifications have been suggested, such as protecting the freedom of the applicant from harassing conduct or addressing vexatious behavior. The power to grant restraining orders stems from the Court's inherent jurisdiction, allowing for the issuance of remedies to protect legal or equitable claims. Recognition of the tort of harassment would enable the court to award damages in addition to issuing restraining orders, offering a more comprehensive response to the problem of harassment.

  • Fourth, he finds that existing torts fail to adequately address the harm caused by harassment. While defamation and assault touch on certain aspects of harassment, they are limited in scope, addressing false statements causing reputational harm and imminent threats of physical harm, respectively. The new privacy torts only apply when there is a reasonable expectation of privacy, which may not be present in cases of harassment. The tort of private nuisance, used in the context of repeated telephone calls, is inadequate for many harassment situations as it requires a connection to property. The tort of intimidation also has limited applicability as it necessitates submission to a threat, whereas harassment often lacks a clear threat or submission.

Where Graesser J in Ford and other scholars propose viewing harassment as an extension of the tort of intentional infliction of mental suffering, Feasby J finds that this particular tort requires flagrant or outrageous conduct calculated to produce harm, resulting in a visible and provable illness. Harassers often act recklessly rather than with clear intention, and victims may resort to self-preservation behaviors that don't lead to visible or provable illness. Consequently, the harms and costs associated with harassment that fall short of a visible or provable illness cannot be recovered under the tort of intentional infliction of mental suffering.


The Elements of the Tort of Harassment

After canvassing the reasons for establishing a tort of harassment, Feasby J finds that the new tort of harassment requires a four-part test. The tort is made out where a defendant has:

  1. Engaged in repeated communications, threats, insults, stalking or other harassing behavior in person or through other means.

  2. That he knew or ought to have known was unwelcome.

  3. Which impugn the dignity of the plaintiff, would cause a reasonable person to fear for the plaintiff's safety or the safety of the plaintiff's loved ones, or could foreseeably cause emotional distress, and

  4. Caused harm.

Remedies

Feasby J. then discusses the damages or remedies for this new tort, where he draws from defamation. General damages in defamation cases are presumed without the need to prove actual injury. Factors for assessing general damages include the plaintiff's position and standing, the nature and seriousness of the defamatory statements, the mode and extent of publication, the absence of retraction or apology, and the conduct and motive of the defendant.


In this case, the plaintiff, Ms. Nunn, was a public health inspector who faced attacks on her professionalism and was labeled a criminal and a terrorist. The attacks were widely disseminated through mainstream media and online platforms. The defendant, Mr. Johnston, did not apologize and maintained his position.


  • General damages of $300,000 for injury to her reputation, considering the significant public interest in the COVID-19 pandemic;

  • $100,000 in general damages for the harassment she experienced, which caused her fear and negatively impacted her quality of life;

  • Aggravated damages were awarded in the amount of $250,000.

  • Permanent injunctions restraining Mr. Johnston’s activities in relation to AHS and Ms. Nunn;

  • Costs multiplied by three.

Conclusion

Feasby J. establishment of the new tort of harassment in the province of Alberta marks a significant legal development and will have wide ranging impact on a variety of contexts in the civil litigation sphere. Accusations of harassment are common in employment, business, and domestic contexts, and this tort, including the significant amount of damages awarded, represents a significant risk to business and employers, while providing another right of action by those impacted by serious and continual harassing behaviour.


Andrew Roy Legal offers a variety of civil litigation services. Contact us today to learn more about how we can assist you.


The information in this article is not legal advice and does not establish an attorney-client relationship.


© 2023 Andrew Roy

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