In Alberta Health Services v Johnston, the Court of King’s Bench of Alberta recognized, for the first time, an independent tort of harassment. Previously, Alberta courts had rejected the notion of harassment being an independent cause of action for civil claims. In coming to this decision, the Court noted the following:
- Harassment can occur online, or involve physical acts such as stalking;
- It can originate through an intimate relationship, a business or workplace relationship, an obsession with a stranger, or myriad of other human encounters; and
- It often has a gendered, sexual or racial component.
Considering that courts regularly grant restraining orders to address harassment as evidence that it is a justiciable issue, the Court concluded that it is an incremental change to recognize that the wrong being restrained in these cases is tortious harassment.
The Court defined the tort of harassment as follows:
- The defendant has engaged in repeated communications, threats, insults, stalking, or other harassing behaviors in person or through 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 their safety or the safety of their loved ones, or could foreseeable cause emotional distress; and
- Caused harm.
In the case before it, the Court determined that the defendant had committed the tort of harassment as he repeatedly spoke about the plaintiff in his online talk show using pejoratives such as “terrorist” and “fascist” to describe her. Further, the defendant mocked the plaintiff and her family while using pictures of them from the plaintiff’s social media and his statements could reasonably be interpreted as inciting his followers to enact violence against the plaintiff and her family. In response, the plaintiff deposed that she feared for her safety and the safety of her children and installed a home security system. The plaintiff was awarded CA$100,000 in general damages for the tort of harassment.
Previously, the main recourse for employees who experienced harassment for reasons related to a protected ground was through the Alberta Human Rights Commission. Employees were also able to file workers’ compensation claims if they were in a covered industry and occupation under the Alberta Workers’ Compensation Act. In addition, if an employee experienced harassment in the workplace, they could quit on the basis of a toxic work environment and commence a constructive dismissal claim. Employees now have a further option to file a claim against their employer alleging vicarious liability for harassment within the workplace.
Similar to considerations recognized by the Alberta Human Rights Commission, the employer’s defence to an employee’s claim of the tort of harassment would be that they conducted a thorough and proper investigation once they were aware of any alleged harassment in the workplace. Thus, it remains important for employers to promptly respond to and investigate complaints of harassment. This may require retention of a third-party investigator depending on the severity of the complained of harassment.
In addition, employers may have a jurisdictional defence to tortious harassment claims if their employees are covered by workers’ compensation legislation. However, any defence that may arise pursuant to workers compensation legislation does not negate an employer’s obligation under occupational health and safety legislation to properly respond to and investigate reports of workplace harassment.
If you have any questions about conducting workplace investigations or workplace investigation training resources, please reach out to Taylor Holland, Jenny Wang or any member of Dentons’ Workplace Investigations Group.