The Alberta Court of King’s Bench recently concluded that there is an independent tort of harassment1Alberta Health Services v. Johnston, 2023 ABKB 209. The decision was made in the highly publicized case of Kevin Johnston, who was described by the court as a “self-appointed spokesperson who opposed public health measures intended to mitigate the COVID-19 pandemic.” Kevin Johnston had an online talk show through which he promoted aggressive, inflammatory and threatening positions against various government institutions and people, including Alberta Health Services (“AHS”) while broadcasting.
Mr. Johnston made a number of statements on his talk show that led to AHS and its employee, a Public Health Inspector (the “Inspector”) filing a claim against him. These statements included accusations that AHS had committed various crimes such as terrorism and homicide, and that the Inspector was an alcoholic and improperly using public authority. The plaintiffs brought their action in defamation, “tortious harassment”, invasion of privacy, and assault. This case contains several important pronouncements on these causes of action that will have great precedential value in future decisions across Canada. Many Canadian courts have only recently begun to take small steps towards recognizing such a general tort of harassment.
Further insight from the Alberta Court of King’s Bench on a variety of causes of action, as set out below, is welcome.
“Government Actors” Cannot Sue for Defamation
Before addressing the merits of the claim, Justice Feasby addressed whether AHS has the right to bring a claim in defamation. This involved review of Canadian and international cases leading to the conclusion that democratically elected governments cannot bring an action in defamation. This decision then extended this principle to “governmental actors” carrying out their actions by nature or by legislative control.
Given AHS is a “government actor”, it could not sue for defamation. However, the Inspector, as an individual AHS employee, was able to sue for defamation and the remainder of the decision addressed her claim. Whether the right to sue in defamation should be denied to bodies exercising statutory authority and non-government bodies implementing government objectives was left for another day.
The test for defamation as set out by the Supreme Court of Canada was referred to by the Court, being:
- The words complained of were published, meaning that they were communicated to at least one person other than the plaintiff;
- The words complained of referred to the plaintiff; and
- The impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person2Bent v. Platnick, 2020 SCC 23 at para. 92.
The Court found the test in this case was clearly made out. Kevin Johnston had repeatedly called the Inspector a terrorist, a villain, a Nazi, a Communist, and various other epithets, all with the goal of lowering the Inspector’s reputation in the eyes of a reasonable person. The Court also noted that while Kevin Johnston had not pled the defence to defamation of “fair comment”, it would have likely failed in any event.
Tort of Invasion of Privacy
To date, as the Court noted, Canadian law has not yet generally recognized the tort of invasion of privacy. The Plaintiffs pled that the Mr. Johnston had committed this tort by publishing private images of the Inspector and her family that were obtained from social media accounts. He had made public attempts to identify residential addresses and threatened to attend them.
The narrower tort of “intrusion upon seclusion” had been previously recognized in Ontario and the tort of public disclosure of private facts had recently been found in Alberta. The Court noted that the common thread with all these decisions is that the information that is misused must have been private in the first place. Given the social media accounts in this case were unlocked and open to the public for viewing, the Court concluded that the use of images from a public social media account cannot be grounds for a claim for a breach of privacy tort.
Tort of Assault
For a tort of assault to be found, there must be a reasonable apprehension of imminent harm, such as a threat of violence which exhibits an intention to assault and a present ability to carry out the threat. Despite the disturbing nature of Kevin Johnston’s threats to “come for them” or “I’ll arm myself and I’ll come right to your doors”, Justice Feasby found that such threats did not constitute an “imminent threat” to the Inspector or other AHS employees as is required to make out the tort of assault.
Tort of Harassment
Until this case, there was no independent tort of harassment recognized in Alberta. Such claims were typically pled as “intentional infliction of mental suffering” which is a longstanding recognized tort. Intentional infliction of mental suffering is difficult to prove as it often requires evidence of damage as documented in medical reports and related types of evidence.
The Court reviewed the history of the tort of harassment and noted that the Ontario Court of Appeal has been particularly reticent to recognize it. However, Ontario has recently recognized a narrower tort of internet harassment. This distinction without a real difference puzzled the Court and it was suggested there really should be no difference. Harassment is harassment regardless of whether it is done on the internet or otherwise.
As result, in a highly anticipated decision, the Alberta Court of King’s Bench recognized the standalone tort of harassment. Justice Feasby justified the recognition of the new tort based on the following:
- Harassment is a crime per s. 264 of the Criminal Code, suggesting it is reasonable to have a civil remedy available for it;
- The Alberta Legislature has the authority to create a statutory case of action, although it has not done so;
- The Alberta Court of King’s Bench regularly grants restraining orders to prevent and to protect individuals from harassment; and
- There is a gap in the law that is not filled by intentional infliction of mental suffering, and this was particularly relevant to the suffering of women and marginalized groups, whose experiences have not been recognized in existing jurisprudence.
Justice Feasby then set out a new test which will establish that a defendant has committed the tort of harassment when he or she has:
- Engaged in repeated communications, threats, insults, stalking or other harassing behaviour in person or through or other means;
- That they knew or ought to have known was unwelcome;
- Which impugn the dignity of the plaintiff, would cause a reasonable person to fear for their safety or the safety of loved ones, or could foreseeably cause emotional distress; and
- Caused harm.
Mr. Johnston was found liable for the newly established tort of harassment and was ordered to pay $400,000 for general damages to reflect the harm done to the Inspector which included fear for her safety, the safety of her children, and the effects of the harassment on the way she and her family lived their lives. A further $250,000.00 was awarded to the Inspector for aggravated damages for Mr. Johnston’s conduct, including his refusal to apologize for his statements and ongoing expression that they were justified.
There is no doubt that issues of harassment in the digital age have permeated workplaces, family life and commercial settings, and this is amplified by the ease with which people may broadcast information online. This official recognition of the tort of harassment is helpful for understanding when such actions will result in awards for damages in favour of victims. The substantial aggravated damages award in this case must also not be ignored; it signals a movement towards a more aggressive approach by the Alberta Courts to perpetrators of this sort of behaviour when they refuse to acknowledge the damaging nature of their conduct. This may extend to other settings, such as in the workplace, in the form of bad faith aggravated damages against employers.
Carscallen LLP’s team of litigators can help guide you through the implications of evolving torts, and the effects they may have on you and your interests. This is a new and ever-changing area; Carscallen can assist with how best to approach situations that may arise in your workplace as well as in business and personal interactions.
- 1Alberta Health Services v. Johnston, 2023 ABKB 209
- 2Bent v. Platnick, 2020 SCC 23 at para. 92