Alberta recognizes the tort of harassment

It seems that Alberta is the first Canadian province to recognize the tort of harassment in the recent decision AHS v. Johnston 2023 ABKB 209.

Mr. Johnson was a Calgary mayoral candidate and during his campaign Mr. Johnston spewed misinformation, conspiracy theories, and hate on his online talk show and as the court put it, “anytime a microphone was nearby”. In particular, Mr. Johnson targeted AHS, Sarah Nunn an AHS health inspector, and Dave Brown. Mr. Johnson often referred to these individuals as criminals, making veiled threats of violence, and threatening personal and financial ruin.

As a part of rendering his decision, Justice Feasby reviewed case law from other jurisdictions, and noted that to date Ontario and British Columbia had declined to recognize a tort of harassment. Justice Feasby discussed the existing torts of invasion of privacy and assault.

Prior to defining the tort, Justice Feasby commented:

“As I proceed to consider whether the tort of harassment exists, I am mindful that the existing constellation of torts is a product of the accumulation of judicial decisions over many centuries. For most of this time, many harms experienced by women and members of other marginalized groups were not recognized. Harassment is something that can happen to anyone, but disproportionately affects women and members of other marginalized groups. As one scholar put it when writing about the tort of harassment, “the common law is, by tradition, insensitive to the particular wrongs suffered by women”… The historical failure of courts to recognize a tort of harassment is not evidence that such a tort should not exist.”

The tort of harassment will be established where someone has:

(1) engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through or other means;

(2) the person knew or ought to have known was unwelcome;

(3) the communication impugn the dignity of the other person, or 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.

In applying the new test, the Court awarded $100,000 in general damages for harassment, among other damages.

If you have questions concerns, or feel that the tort of harassment may apply to you, please feel free to Contact Us.