In B.C., where necessary factors exist, one can generally seek remedies for harassment with the B.C. Human Rights Tribunal or WorkSafeBC. However, there is no common law tort of harassment in either British Columbia or Canada (see for example, Stein v. Waddell, 2020 BCSC 253 at paras. 30–35; Gaucher v. British Columbia Institute of Technology, 2021 BCSC 289; and Merrifield v. Canada (Attorney General), 2019 ONCA 205). This long-held position of the Canadian courts was recently changed when Justice Colin Feasby of the Alberta Court of King’s Bench established a new tort of harassment in that province in Alberta Health Services v Johnston, 2023 ABKB 209 (“Johnston”).

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Johnston Background

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In Johnston, Mr. Johnston who was a candidate for mayor of Calgary in 2021 spewed misinformation, conspiracy theories, and hate, targeting Alberta Health Services (“AHS”) and Sarah Nunn, who was employed by AHS as a public health inspector. Mr. Johnson’s engaged in persistent harassment of those who acted in the course of their duties enforcing public health orders during the COVID-19 pandemic. Mr. Johnston identified Ms. Nunn by name and shared pictures of her and her family that he obtained from her publicly accessible social media accounts, making derogatory comments about them.

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Tort of Harassment

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Having considered the facts and relevant authorities, Justice Feasby established the tort of harassment as follows:

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                [107] Based on the foregoing, I define the tort of harassment as follows.  A defendant has committed the tort of harassment where he has:

                    (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.

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The Court in Johnston found Mr. Johnston to have met the test for the tort of harassment, and awarded $100,000 in general damages against him for the breach of the tort, as well as general damages for defamation in the amount of $300,000 and aggravated damages of $250,000.

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Takeaway

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While it remains to be seen how the B.C. courts will respond to this new tort of harassment, employers should be aware of this new tort and the potential risk it presents. Where employees engage in harassment, employers could be held vicariously liable. In view of this newly established tort, in addition to the statutorily imposed legal obligations to discourage and prohibit harassing conduct, employers should consider policies to control harassment in the workplace.

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Note to Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter please contact one of our group members. We communicate all these updates to our clients and readers on our Employer Resources Portal and through monthly Newsletters.

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