In June 2023, the Court of King’s Bench of Alberta recognized a new harassment tort that allows those experiencing harassment to sue for damages in civil court.
When I say “torts”, you probably think of a delicious dessert. In law though, the word has a slightly different meaning!
Tort law
A tort is a civil wrong that causes a person to suffer loss or harm, including to property. The person who suffers loss or harm (the plaintiff) can sue the person who caused the harm (the defendant) in civil court for damages. Usually, damages are a sum of money the defendant pays the plaintiff as compensation.
Torts are different from criminal law. Torts are between people and businesses while criminal offences are crimes against society.
You may be familiar with several torts:
- Assault – threat of imminent physical harm (different from the criminal offence of assault, which is unwanted physical contact)
- Battery – physical harm
- Negligence – someone not taking proper care to avoid a foreseeable risk
Where do torts come from? Well, some torts are in legislation. For example, Alberta’s Protecting Survivors of Human Trafficking Act creates the tort of human trafficking. Other torts only exist at common law, or judge-made law. Judges can recognize new torts where the law does not properly protect a right.
Just a few weeks ago, the Court of King’s Bench of Alberta recognized a new tort of harassment in Alberta Health Services v Johnston.
The tort of harassment
A defendant has committed the tort of harassment where:
- they engaged in repeated communications, threats, insults, stalking or other harassing behaviour in person or in other ways
- they knew or should have known their behaviour was unwelcome
- their behavior questions the plaintiff’s dignity, causes the plaintiff to fear for their safety or the safety of their loved ones, or could cause emotional distress, and
- they caused harm.
A plaintiff must prove all these elements for a judge to decide whether a defendant committed the tort of harassment. This tort may also come into play in many situations, including at work, while renting, or in relationships.
In his decision, Justice Feasby noted how the law already protects against harassment in other ways. Canada’s Criminal Code says it is a crime to harass another by engaging in conduct that makes them fear for their safety or the safety of someone they know. However, our criminal justice system provides limited remedies to the victim of a crime. Restraining orders can protect a person from their harasser by ordering the harasser to stay away from them, but not compensate them for suffering from harassment.
Do you see what I see? Neither of these existing laws fully compensate a person for their losses or suffering from harassment. The tort of harassment now allows a person to sue their harasser for damages. In fact, several crimes have a matching tort that allows the victim to seek compensation.
Alberta Health Services v Johnston
Let’s look at the case that started it all.
Kevin Johnston ran for mayor of Calgary in 2021. During his campaign, he made vile comments about Alberta Health Services (AHS) and Sarah Nunn, an AHS public health inspector. The comments related to AHS policies during COVID-19 and Ms. Nunn’s role in enforcing those policies.
Following a lengthy analysis of the court’s authority to recognize a new tort of harassment, Justice Feasby easily decided Mr. Johnston had committed the tort of harassment against Ms. Nunn. As the plaintiff, Ms. Nunn successfully proved the tort’s four elements:
- Mr. Johnston repeatedly engaged in communications, threats, insults and other harassing behaviour through his talk show, media and more. We can reasonably interpret his statements as encouraging his followers to be violent towards Ms. Nunn and her family.
- Mr. Johnston knew or should have known Ms. Nunn did not welcome this behaviour.
- Mr. Johnston’s behavior would cause a reasonable person to fear for their safety and the safety of their loved ones.
- Ms. Nunn suffered harm and losses. She was afraid to leave her home, the police told her children not to take the bus, and she installed a home security system. This caused emotional distress and seriously impacted her quality of life.
Justice Feasby awarded Ms. Nunn $100,000 in general damages for harassment and $250,000 in aggravated damages. Ms. Nunn also sued Mr. Johnston for defamation, and the court awarded $300,000 in general damages to compensate her for injury to her reputation.
Mr. Johnston owes Ms. Nunn a total of $650,000. While this may seem like a win for Ms. Nunn, Justice Feasby also noted Mr. Johnston is unlikely to pay up as he has not yet paid an earlier multi-million-dollar defamation damages award in Ontario.
My final thoughts
The law can often feel like a distant, emotionless beast muddled in process. Sometimes, people who use our legal system do not feel like it is a just system.
In a case like this, where the facts are quite disturbing, it is comforting to see the courts recognize a wrong and provide a remedy in law. But, as we also saw, even when “justice is served”, it can mean very little if the defendant cannot pay the damages awarded to the plaintiff. After all, you cannot get water from a rock.
To end on a more positive note … a plaintiff can sue a defendant who caused them harm, including harassment. And remember that there are many ways to enforce a court order, even years later.
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
About Jessica Steingard
