Written By Munaf Mohamed KC, Brynne Harding and Denise Brunsdon
Court Unveils Four-Part Harassment Lawsuit Test
A bold Alberta Court of King's Bench decision, Alberta Health Services v Johnston, 2023 ABKB 209, declined to follow Ontario appellate authority on the issue and established the tort of harassment in Alberta to fill a "gap in the law".
The scholarly reasons of Justice Feasby direct that a defendant committed harassment where they:
- 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 the Plaintiff's safety or the safety of the Plaintiff's loved ones, or could foreseeably cause emotional distress; and
- caused harm.
The common law can recognize new torts to keep the law "aligned with the evolution of society", and to fulfil the maxim that ubi jus ibi remedium (for every wrong, the law provides a remedy).
In this case, a self-represented social media content creator and online talk show host targeted Alberta Health Services (AHS) and two of its public health inspectors enforcing COVID-19 health orders. The Court reviewed hours of the Defendant's online content, finding he repeatedly stated an intention to prosecute AHS employees for crimes and indicated a desire to financially harm AHS employees. The Court found the Defendant feigned disavowal of possible violence by his allies: “You AHS idiots don’t seem to realize you’re pushing way too far. Now I don’t condone violence but when it happens to you, you’re going to deserve it.”
The harassment targeted one particular AHS public health inspector. The Defendant named the inspector, showed pictures from her unlocked social media accounts, called her a “terrorist” with a husband that “looked retarded”, and stated:
.... I intend to make this woman’s life miserable, I intend to destroy this woman’s life like she has destroyed the lives of Calgarians, I am the only one who’s going to hit public office who’s going to fight for you Calgary. If anyone like this person here, this useless individual, decides to go to war with a Calgary businessperson, she’s going to jail, and I’m going to gladly go see her in the jail cell and have a little chit chat with her about how and why she’s there and what we plan to do ... she’s going to have to fight terrorism charges.
The Court awarded the health inspector $100,000 for harassment damages, $300,000 for defamation damages, a further $250,000 in aggravated damages and enhanced costs.
Separately, Justice Feasby canvassed both national and international authority on the question of whether government actors could maintain claims in defamation. They cannot.
Because the law affirms an "absolute privilege to criticize government," a democratically elected government cannot sue in defamation. Justice Feasby held that this is equally true of unelected government actors. To decide whether AHS can sue in defamation, Justice Feasby analyzed AHS' governing legislation and ruled that the high degree of legislative control over AHS makes AHS a government actor (as opposed to a non-governmental body implementing a government objective).
The case does not remove an individual's right to sue in defamation if they are connected with the government.
There is a new remedy in Alberta for persons suffering harassment, doxing or swatting. Even with anonymous online trolls, emerging legal mechanisms can help victims (and their lawyers) find, identify and sue perpetrators.
No elected government or government actor can sue in defamation. Whether an entity is a government actor turns on the relevant legislation and the degree of control that the government enjoys over the entity's functions.