A new tort of harassment could affect workplace culture and become part of lawyers' toolkits
Across Canada, labour and employment lawyers have turned their eyes toward an Alberta Court of King’s Bench decision that had nothing to do with a dispute between an employer and an employee.
The reason? It looks like Alberta Health Services v. Johnston, 2023 may have provided a new tool in the toolbox for an employee to claim damages when fired or quitting because of a toxic workplace environment – the tort of harassment.
The case involved two public health inspectors who enforced provincial orders during the COVID-19 pandemic. Preacher Kevin Johnston, a self-appointed public-health critic, Calgary mayoral candidate, and host of an online talk show, bombarded one of the inspectors with derogatory comments, including the term “terrorist.”
Johnston also said he intended to “make this woman’s life miserable” and hinted at potential violent actions. He also shared pictures of the woman and her family obtained from social media accounts.
Following a trial, Justice Colin Feasby deemed that the facts warranted a separate tort of harassment, adding a $100,000 award for harassment on top of $300,000 for defamation and $250,000 in aggravated damages.
While it is a decision that does not bind courts in other provinces, labour and employment lawyers quickly gleaned that a separate tort of harassment, as outlined in the decision, could be used by plaintiffs who were fired or felt compelled to quit because of an untenable work environment.
Toronto-based employment lawyer Howard Levitt of Levitt Sheikh says, “In the past, evidence of harassment usually opened the door for a claim of negligence or constructive dismissal in the workplace. However, the new separate tort of harassment can be used on top of those claims, providing the potential for even higher damage awards.”
Howard Levitt
Adam Rempel, a lawyer with Osler Hoskin & Harcourt LLP based in Calgary, says, “The judge, in this case, found that there was a gap in tort law that needed to be addressed.” The idea of a harassment tort has often come up in litigation, “but nothing solid until this.”
Adam Rempel
Sometimes, Rempel says, “it just takes the right case to come along to set the stage for a new tort. It will be quite interesting to see how Alberta courts and those in other provinces respond to this decision over the next several years.”
In creating the new tort, Justice Feasby wrote: “Existing torts do not address the harm caused by harassment.” Defamation and assault get at some kinds of harassing behaviour, he noted, “but are inadequate because they are limited to false statements causing reputational harm, in the case of defamation, and imminent threats of physical harm in the case of assault.”
New privacy torts may address harassment only if there is a reasonable expectation of privacy – which is absent in Johnston, he added – and the tort of intimidation “is of limited use to address harassment because it requires submission to a threat, whereas in many cases with harassment, there will either be no threat or no acquiescence.”
Walter Pavlic, a partner with MLT Aikins LLP in Edmonton, says, “The judge, in this case, did an excellent job of analyzing the existing torts that were out there and gave a good rationale for this additional tort.” Justice Feasby reviewed the options and found none were adequate for the situation.
Walter Pavlic
“Every jurisdiction has its peculiarities, but certainly, the argument for the tort of harassment has been established, and the groundwork has been laid.”
Pavlic’s associate, Arooj Shah, notes that “the recognition of new tort is pretty rare” because if there are ways to compensate someone without creating a new tort, courts will typically use them. “The facts, in this case, are pretty unique, so the judge felt the need to adequately compensate for the harm the plaintiff suffered.”
Arooj Shah
Levitt says he certainly took note of the Alberta decision and how it could apply to many situations he typically deals with. He also suspects that judges outside of Alberta, while not bound by Johnston, will refer to it and rely on it in their own decisions, “thereby establishing harassment for the basis of a lawsuit in short order.”
Indeed, Ontario courts have recognized “online harassment” as a separate tort since 2021. Levitt points out that Justice Feasby in Alberta noted in his decision that there is no difference between the two situations.
Justice Feasby considered the Ontario approach in his decision and found that the tort for online harassment, contingent on it being online, “makes no sense,” Levitt says, as it provided no remedy for harassment that occurred in person or otherwise happened offline.
The Alberta decision also considered several factors favouring the creation of a harassment tort. They include the fact that harassment is already a crime under the Criminal Code; courts routinely issue restraining orders to protect victims of harassment; and existing torts (defamation, assault, nuisance, and intimidation) fall short of addressing the harm caused by this behaviour.
Recognition of this tort “opens the door” to a new avenue of legal recourse for victims of workplace harassment, Levitt says.
“We’re going to be seeing a lot of cases, going forward, where people are going to sue for harassment, either by itself or as part of larger claims against employers. And it’s essentially giving another weapon to employees who feel they’ve been harassed.”
However, Levitt says the new tort of harassment also requires a complaint to pass a four-part test.
Justice Feasby wrote that recognizing the tort of harassment in the terms described “provides a doctrinal foundation for and structure to what Alberta courts have been doing for many years in the context of restraining orders.
“Taking this step does not create indeterminate liability nor does it open floodgates; to the contrary, it defines the tort of harassment in a measured way that will guide courts in the future.”
There are existing routes for getting compensation for harassment in an employment setting. Claimants could bring claims of harassment under human rights legislation or a workers’ compensation claim in cases where harassment occurs during employment and leads to a diagnosable mental injury or illness.
Unlike complaints under human rights legislation, however, the new tort doesn’t have to relate to a protected ground, such as race or religion. Justice Feasby also made it clear that harassing actions must happen repeatedly. This differs from human rights decisions in Alberta that have recognized a single incidence of harassment may be severe enough to be found discriminatory.
Common law has no requirement that the harassment occurs during employment, nor that the harassment lead to mental injury or illness, unlike the route to compensation through a workers’ compensation claim. But Osler’s Rempel notes that any medical evidence of negative effects from harassment “fits neatly” under step four of the harassment test outlined by Feasby.
The key takeaway for employers, the lawyers say, is that they should be aware that the harassment tort now exists and that they could be held vicariously liable for harassment committed by one of their employees.
Employers are legally obligated to actively discourage and prohibit harassing conduct or language under several laws, such as human rights codes and occupational health and safety laws. The new tort underscores the need for well-drafted and properly implemented workplace policies, regularly updated to reflect current laws.
Says Rempel: “It puts back on the radar something key to managing a workforce and ensuring you have a healthy workplace.”
Levitt agrees, adding that Johnston “is a decision every HR manager should read – and then they should upgrade harassment policies, grievance procedures as needed, and make sure everybody in the workplace understands them.”
And Pavlic notes that “it all boils down to creating a culture of respect for all and training all employees on how to best achieve and maintain that culture.”
