Filling in a gap in the law? Alberta court recognizes harassment as tort

The Alberta Court of King's Bench recently rendered an important judgment recognizing the tort of harassment in ‎Alberta Health Services v Johnston, (Alberta Health Services). ‎While harassment has long been recognized as a criminal offence under the federal Criminal ‎Code, Alberta's recognition of harassment as civil wrongdoing marks a significant development in tort law.

The rationale for establishing a tort of harassment

Justice Feasby articulated four fundamental reasons underlying the ‎decision:‎

• The inherent wrongful nature of harassment as it is classified as a ‎criminal act.‎
• The availability of existing legal remedies in the form of restraining ‎orders, affirming the justiciability of harassment-related issues.‎
• Harassment as a common law tort does not ‎impede the legislature from creating a statutory cause of action or indicating that ‎harassment is non-actionable.‎
• The inadequacy of the current tort law framework in addressing the ‎harms inflicted by harassment.‎

The elements of the tort

Drawing on the criminal definition of harassment, the court established ‎the following elements comprising the new tort of harassment:‎

• The defendant engaged in repeated communications, threats, insults, stalking, or other forms ‎of harassing behaviour, either in person or through various means;‎
• The defendant knew, or ought to have known, that their conduct was unwelcome;‎
• The plaintiff's dignity was impugned, causing a reasonable person to fear for their safety or ‎the safety of their loved ones or reasonably foreseeing emotional distress as a result;‎ and
• The plaintiff suffered harm as a direct consequence of the defendant's actions.‎

Prior case law

Alberta Health Services arises in the wake of another recent Alberta decision addressing harassment in the context of tort law. In Ford v Jivarj,, Justice Graesser held that harassment is a "logical extension of the tort of intentional infliction of mental suffering", but not a distinct tort.

The Alberta Court's recognition of the tort of harassment is particularly significant due to its departure from recent decisions in British Columbia and Ontario, which have declined to recognize a tort of harassment. In British Columbia, the Supreme Court has consistently affirmed the non-recognition of the tort of harassment in several recent cases, most notably in Anderson v Double M Construction Ltd.

Similarly, while the Ontario Superior Court established internet harassment as a tort in a number of cases including Caplan v Atas, the Ontario Court of Appeal refused to recognize the independent tort of harassment in Merrifield v Canada (Attorney General) (Merrifield). The Court of Appeal in Merrifield justified its non-recognition of the tort of harassment by citing the absence of authoritative support and foreign precedents substantiating the recognition of harassment as a new tort. However, it is notable that the Ontario Court of Appeal did not “foreclose the development of a new tort of harassment that might apply in appropriate contexts”, but rather held that no compelling reason was presented in that case to recognize a new tort of harassment.

Justice Feasby rejected the Ontario approach, noting that while internet harassment is an issue, so too is "old-fashioned, low-tech harassment."

Although Alberta Health Services is a notable step ‎in tort law, its impact is yet to be determined. The defendant, Mr. Johnston, has appealed the court’s decision. Accordingly, it remains uncertain whether this decision will be followed or upheld at the appellate level or if other provinces will adopt a similar approach.