Alberta Recognizes Tort of Harassment

In recent years, discussion of workplace harassment and bullying has become ubiquitous.

There is finally widespread recognition?of the damaging and harmful?effects of harassment at work. It is no longer something that is sidelined or diminished as a "normal" part of office culture that you have to "tough out".

Most employers are now required by law to have workplace harassment policies in effect thanks to?provincial workplace safety legislation.

While workplace harassment is now generally?viewed as serious?misconduct, the courts have been reluctant to accept harassment as an independent?tort.

This means that employees have generally been unable to sue for harassment. They can sue for other things like bad faith and intentional infliction of mental suffering, but not harassment.

The courts are starting to wake up to this. In the recent?court decision?Alberta Health Services v. Johnston, the Alberta court has?formally recognized?the independent?tort of harassment.?

This case is significant?for many reasons but especially?because in 2019, the?Ontario Court of Appeal rejected?the recognition of the tort of harassment, overturning a lower court decision that had finally acknowledged the tort.?

This Ontario case slashed the hopes of many that harassment would be solidified as a tort. To hear the country's most influential court, second only to the Supreme Court of Canada, shoot it down made many proponents of the tort believe it simply was never going to happen.

Now, Alberta has stepped into the picture.

In?the?Alberta Health Services??case,?the court found that Kevin Johnston, a controversial online talk radio host and a candidate in Calgary's mayoral election, had defamed and harassed an?Alberta Health Services (AHS) public health inspector named Sarah Nunn. Ms. Nunn was one of the people?responsible for the implementation of the Covid-19 public health measures in Alberta. Mr. Johnston threatened to use his mayoral powers to send her to prison if he won the election, he called Ms. Nunn a “terrorist” and a “horrible human being”, among many other vile things.

The Judge, Justice Colin Feasby, found that Mr. Johnston's "rants belittled Ms. Nunn and her husband and were filled with pejorative descriptions."

He awarded Ms. Nunn, $650,000 in general and aggravated damages.

The decision also granted an injunction preventing Mr. Johnston from?“[harassing] AHS employees, [including public health inspectors], as they carry out their duties and in their private lives.”

Included in the damages was $100,000 as damages for a new tort of harassment.

Prior to this decision, there was no formally recognized tort of harassment in Alberta, although harassment claims can arise under the Alberta Human Rights Act, the

Occupational Health and Safety Act, the Workers’ Compensation Act, and the Criminal Code.

In recognizing this new tort, Justice Feasby explained that the courts have the power to recognize new torts in order to “keep the law aligned with the evolution of society” and where “the harm in question cannot be adequately addressed by recognized torts.”

Ultimately the Judge found that none of the other torts pleaded in the case could properly address all the facts of the case, and so a new tort was born.

Interestingly, the Court also noted that “harassment is something that can happen to anyone, but disproportionately affects women and members of other

marginalized groups.

The criteria laid out by the Judge to meet the tort of harassment is fairly straightforward. The defendant needs to have:

(1)??????engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through or 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 her safety or the safety of her loved ones, or could foreseeably cause emotional distress; and

(4)??????caused harm.

?What does this mean for employers?

Precedent now exists for employees to be successful in suing for harassment. Time will tell if this precedent is adopted by other courts, or successfully appealed.

Given the trends and?widespread?recognition of the harm caused by harassment, it seems more likely than not that other courts in Canada will follow Alberta's?lead.

For employees, this is only good news. Another piece of ammunition at their disposal when addressing toxic work environments and seeking justice.