Alberta decision could open floodgates for harassment lawsuits

By Howard Levitt and Gregory Sills

Public health inspector targeted during COVID-19 pandemic

We previously wrote about an Ontario case confirming that an employee cannot sue for generalized harassment as a lawsuit in and of itself. The notion of a separate lawsuit for harassment seemed to be out of reach for the time being, and evidence of harassment merely opened the door to a claim for negligence or constructive dismissal in the workplace. But the law continues to develop and the Alberta Court of King’s Bench (the “Court”) recently encountered a set of facts worthy of establishing harassment as a standalone tort, meaning something you can sue for.

Alberta Health Services vs. Johnston involved two public health inspectors who were required to enforce provincial orders during the COVID-19 pandemic. Kevin J. Johnston was a self-appointed anti-public-health spokesperson, Calgary mayoral candidate, host of an online talk show and would-be social media influencer. According to the court ruling, Johnston inundated one of the public health inspectors with the pejorative use of the term “terrorist” and expressly and repeatedly stated that he intended to “make this woman’s life miserable … (and) destroy this woman’s life … she’s going to have to fight terrorism charges.” Over-the-top, inflammatory conduct.

The court considered a number of factors which tilted in favour of establishing a new tort of harassment, including: (1) harassment is already a crime under the Criminal Code; (2) courts routinely issue restraining orders to protect victims of harassment; and (3) existing torts (i.e., defamation, assault, nuisance and intimidation) fall short of properly addressing the harm caused by this kind of behaviour.

The court got it right. Given that Ontario courts have recognized “online harassment” as a tort since 2021, it is surprising that recognizing “offline harassment” as a tort has been resisted by Canadian courts until now.

Given the unending and increasing deluge of harassment allegations in our employment practice and the limited scope within which they are addressed (typically under workplace health and safety legislation), I suspect that other province’s courts, while not bound by Alberta Health Services vs. Johnston, will refer to and rely upon it in the near future, thereby establishing harassment as a lawsuit in Canadian law in relatively short order.

Recognition of this tort opens the door to a new avenue of legal recourse for victims of workplace harassment and will undoubtedly lead to an uptick in lawsuits against employers who fail to take sufficient steps to prevent and address workplace harassment concerns.

It is therefore essential for employers to take a proactive approach to preventing and addressing workplace harassment by implementing comprehensive anti-harassment policies and procedures, providing regular training to employees on how to recognize and report harassment and by taking prompt and effective action to investigate and address any complaints of harassment.

Failure to do so not only risks significant financial liability, but reputational harm, as court cases tend to be more within the public eye than hearings under workplace health and safety legislation, where harassment generally has resided.

While the emergence of the tort of harassment is significant, it is not a licence for employees to bring frivolous or vexatious claims against their employers. In fact, to make out a successful claim for harassment, the plaintiff must demonstrate all of the following:

Outrageous conduct by the defendant;
The defendant’s intent to cause (or reckless disregard that causes) emotional distress;
That the plaintiff in fact suffered severe or extreme emotional distress; and
That the defendant’s conduct actually caused this emotional distress

This balances employees’ and employers’ competing interests with reasonable limits and thresholds

Not every instance of workplace harassment will give rise to a successful claim, so overzealous plaintiffs need not view this as an easy route to riches.

Taking a step back, the emergence of the tort of harassment is just one piece of the puzzle when it comes to preventing and addressing issues of workplace harassment. Employers must continue to comply with their obligations under both occupational health and safety as well as human rights legislation, which prohibit discrimination and harassment on a variety of grounds, such as race, sex, gender identity and sexual orientation.

Perhaps the emergence of harassment as a standalone tort will serve as the proverbial springboard for employers to take a broad approach to all related issues and develop comprehensive policies and strategies for effectively dealing with these allegations.

As is tradition, only time will tell.