Alberta Health Services v Johnston, 2023 ABKB 209 (Feasby) is a case of some notoriety in Alberta. The court in this case found that the Defendant Kevin J. Johnston was liable in very substantial damages to AHS employee Sarah Nunn for defamation and harassment.
This case is very important in Alberta, because it is the first Alberta case to clearly recognize the tort of harassment.
The facts of this case are not related to employment law, but the case is sure to be used in an employment law case because harassment allegations are common in employment.
Facts
The following are the pertinent facts summarized by the Alberta Court of King’s Bench:
- The defendant Kevin Johnston had run for mayor in Calgary
- Johnston was a radio personality. He had an online show called The Kevin J Johnston Show
- During his mayoral campaign, Mr. Johnston made numerous negative remarks publicly and on his radio show about AHS, and AHS employee Sarah Nunn
- Nunn was a health inspector for AHS
- Johnston was highly critical of COVID-19 measures at the time, and had made public remarks suggesting that if he were elected mayor, he would put various people in jail and bankrupt them, including the plaintiffs. He also made comments suggesting that although he did not condone violence, if it happened they would deserve it
- Johnston described Ms. Nunn on his show as a “terrorist” and said that her husband “looked retarded”. He also suggested people look at her social media account and that it was full of drunk pictures of her and that she was an alcoholic
- Nunn was afraid to leave her house while this was going on, and was afraid to put her children on the bus to school
- The plaintiffs AHS and Ms. Nunn sued Mr. Johnston for defamation and harassment
Analysis / Conclusion
The Honourable Justice Colin C.J. Feasby first considered defamation. He found that AHS is a public body, and therefore cannot sue in defamation.
Justice Feasby found that Mr. Johnston had defamed Ms. Nunn, because she was not a criminal or an alcoholic or a terrorist, and because referring to her by these labels would tend to lower her in the eyes of a reasonable person in society.
Justice Feasby went on to note that the tort of harassment did not yet exist in Alberta, but harassment was already being dealt with in things like restraining orders, so it would be an incremental change in the law to allow someone to sue for harassment as a tort. He went on to reason that there is a gap in the law this could fix:
[99] Existing torts do not address the harm caused by harassment. Some of those torts have been alleged in the present case and their elements have been reviewed in earlier sections of these Reasons. Defamation and assault get at some kinds of harassing behaviour 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. The new privacy torts address harassment only if there is a reasonable expectation of privacy – which is absent in the present case. The tort of private nuisance was used to address harassment by way of repeated telephone calls in Motherwell, but it is an inadequate basis for liability for harassment in many circumstances because it requires a connection to property. 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.
The Court went on to rule that there would now be a tort of harassment in Alberta, and described the test for the tort as follows:
[107] […] 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.
Justice Feasby went on to find that Mr. Johnston had engaged in the tort of harassment against Ms. Nunn.
In total, the Court awarded Ms. Nunn general damages for defamation of $300,000, damages for harassment of $100,000, and aggravated damages of $250,000.
My Take
This case is really important, because plaintiffs have tried and failed to establish this tort in Alberta in the past. This is the first time someone succeeded here.
I think it will be interesting to see if this case gets appealed, and it will be interesting to see whether this case is adopted in other contexts and other Canadian provinces.
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