The Tort of Harassment

/The Tort of Harassment

The Tort of Harassment

2023-06-01T17:43:43-06:00 May 1st, 2023|

Alberta appears to have developed a new tort in Alberta Health Services v Johnston, 2023 ABKB 209  in establishing the tort of harassment. The Defendant in this matter was an online talk show host and social media commentator who the Court found targeted Alberta Health Services (AHS) as well as two of its inspectors. The harassment was particularly pronounced in relation to one inspector. The Defendant disparaged her online and indicated a desire to make her life miserable, while making other generally unkind comments.

Rather than having the harassment fall within an existing tort, the Court held that the harassment could stand alone as an actionable grievance. In so doing, the Court has filled what it noted to be a gap that existed in the law. In particular Justice C.J. Feasby noted:

Existing torts do not address the harm caused by harassment.  Some of those torts have been alleged in the present case and their elements have been reviewed in earlier sections of these Reasons.  Defamation and assault get at some kinds of harassing behaviour but are inadequate because they are limited to false statements causing reputational harm in the case of defamation and imminent threats of physical harm in the case of assault.  The new privacy torts address harassment only if there is a reasonable expectation of privacy – which is absent in the present case.  The tort of private nuisance was used to address harassment by way of repeated telephone calls in Motherwell, but it is an inadequate basis for liability for harassment in many circumstances because it requires a connection to property.  The tort of intimidation is of limited use to address harassment because it requires submission to a threat (Klar & Jeffries at 835) whereas in many cases with harassment there will either be no threat or no acquiescence.

The Court went on to note that a Defendant commits harassment where they:

  1. engage in repeated communications, threats, insults, stalking or other harassing behaviour in person or through or other means;
  2. knew or ought to have known such actions were unwelcome;
  3. impugn the dignity of the plaintiff, that 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.

Damages were awarded to one particular inspector for the Defendant’s harassment in the sum of $100,000. In the end, the case has established a new remedy for individuals while also identifying various factors and criteria to be used in assessing a claim.

Note: This article provides general commentary and is in no way intended to replace the need to consult with a legal professional concerning the specific circumstances of your situation. This article should not be construed or relied upon as legal advice.


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