By Sophie Qin
Alberta Health Service employees experienced the brunt of the anti-vaccine and anti-masking sentiments triggered by the COVID-19 pandemic. Former Calgary mayoral candidate Kevin Johnston in particular was a prominent agitator against the employees of AHS not only expressing anti-vaccine and anti-masking rhetoric in-person and online, but also calling AHS employees terrorists and criminals. As a result of his treatment of AHS employees, particularly his treatment of the plaintiff Sarah Nunn, the tort of harassment has been officially recognized in Alberta. I summarize here the test for the new tort and what damages can flow from it.
Justice Feasby begun his formulation of the new tort by holding that its determination must be done on a case-by-case basis, much like with negligence. He also noted that it is important that harassment be recognized to impugn on the dignity of the target as this makes the tort actionable against offensive behaviour that targets individuals based on their human rights characteristics. Proof of severe emotional distress should not be necessary, merely that suffrage of some form of loss occurred. From Caplan v Atas, 2021 ONSC 670, other caselaw, as well as section 264(1) of the Criminal Code, the Justice then reasoned that a key aspect of the tort must be repeated or persistent behaviour. He created the test for the analysis at paragraph 107 of the decision, paraphrased as follows:
A defendant has committed the tort of harassment where they:
(1) engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through or other means;
(2) knew or ought to have known the behaviour was unwelcome;
(3) impugned the dignity of the plaintiff, or would cause a reasonable person to fear for their safety or the safety of their loved ones, or could foreseeably cause emotional distress; and
(4) caused harm.
On earlier review of the evidence, Justice Feasby established that Johnston’s statement could reasonably be interpreted as inciting his followers to violence against the plaintiffs, which was harassing behaviour that he knew or ought to have known was unwelcome. It was behaviour that would have caused a reasonable person to fear for their safety or the safety of their loved ones and Nunn did contend that she feared for her safety and the safety of her children, causing her to fear leaving her home. Among other things, the harassing behaviour caused the plaintiff to install a home security system.
Justice Feasby determined that Johnston’s conduct constituted tortious harrassment against Nunn and damages were owed. Damages that flow from a finding of tortious harassment was then determined to include general damages. Justice Feasby awarded the plaintiff $100,000 in general damages and advised that the award did not require evidence of illness, merely that the conduct seriously diminished the plaintiff’s quality of life. Special damages were also allowed for security upgrades made to the plaintiff’s home as long as the plaintiff could produce evidence of the cost. Finally, Justice Feasby held that aggravated and punitive damages could also be appended, though punitive damages were not awarded in this case on account of the defendant not likely being dissuaded by them.
Sophie Qin is an Articling Student at Donna Purcell QC Law
