First Recognition of a Stand-Alone Tort of Harassment in Alberta

Date: 2023

Court: Court of King’s Bench of Alberta

Citation: Alberta Health Services v Johnston, 2023 ABKB 209 (CanLII)

The Alberta Court of King’s Bench broke new ground in Canadian tort law in Alberta Health Services v Johnston by recognizing, for the first time in Alberta, a stand-alone common law tort of harassment. This opens a civil avenue for damages where previously only non-damages remedies (e.g., restraining orders) and other torts (defamation, assault, invasion of privacy) could be pursued.

Factual Background

The plaintiffs—Alberta Health Services (AHS) and two senior AHS employees—sued Kevin J. Johnston, a social media personality and Calgary mayoral candidate, for repeated harmful conduct directed at them during the COVID-19 pandemic. Johnston publicly disseminated hostile, degrading, and threatening statements about AHS and its employees, including sharing personal information and abusive commentary about one individual plaintiff that generated fear for her safety and that of her family.

The plaintiffs sought damages for defamation, invasion of privacy, assault, and harassment. Johnston failed to defend the action, and the matter proceeded on default judgment.

Court’s Legal Analysis

Justice Feasby recognized that existing torts did not adequately address the harms caused by sustained harassment. While defamation addresses reputational injury and assault addresses imminent threats of physical harm, neither tort captured the pervasive distress and fear arising from repetitive, unwelcome conduct that does not involve imminent violence or defamatory falsehoods. Traditional privacy torts also fall short where no reasonable expectation of privacy exists.

The Court noted that harassment is already a criminal offence, restraining orders are frequently granted to address harassing conduct, and there is a legal gap for civil redress. On that basis, the Court established a new tort of harassment with the following elements:

1. The defendant engaged in repeated communications, threats, insults, stalking, or other harassing behaviour, whether in person or by other means;

2. The defendant knew or ought to have known that the conduct was unwelcome;

3. The conduct impugned the dignity of the plaintiff, would cause a reasonable person to fear for their safety or the safety of loved ones, or could foreseeably cause emotional distress; and

4. The claimant suffered harm as a direct result of the conduct.

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This four-part standard draws on common law and the criminal law definition of harassment (Criminal Code, s. 264) to ensure both foreseeable emotional distress and safety-related harms are actionable.

Remedies and Damages

Applying its new test, the Court found that Johnston’s conduct satisfied the elements of the tort of harassment against the individual AHS employee:

• $100,000 in general damages for harassment;

• $300,000 in general damages for defamation; and

• $250,000 in aggravated damages for the individual plaintiff’s distress and quality-of-life impacts.

• Permanent injunctions were also granted against further harassment and defamatory activities.

  
  

AHS as a corporate plaintiff was not eligible for defamation damages, but the injunction was ordered in its favor as well.

Significance of the Decision

This judgment marks the first time an Alberta court has formally recognized a general tort of harassment outside the narrower context of internet harassment recognized in some other provinces. It fills a longstanding gap for civil liability for harassment that may not fall squarely within traditional torts like defamation, assault, or invasion of privacy.

Notably:

• The tort applies regardless of medium—online or offline.

• It does not require a provable mental illness or physical injury to succeed; foreseeably caused emotional distress and fear for safety suffice.

• Harassment need not be tied to a protected human-rights ground to be actionable.

  
  

Alberta Health Services v Johnston stands as a milestone in Alberta tort law, signaling judicial willingness to innovate where common law gaps exist. By recognizing the tort of harassment, the Alberta Court of King’s Bench has equipped civil litigants with a powerful new tool to seek compensation for harms that previously lacked a direct civil remedy — provided the conduct meets the new four-part legal test.

In Lavoie v Lavoie, 2025 ABKB 79, the Alberta Court of King’s Bench considered the application of the newly recognized tort of harassment in the context of a family dispute.

This decision is significant because it demonstrates how Alberta courts are approaching harassment claims between former spouses, and clarifies the evidentiary threshold required in family litigation.

The parties were formerly married and engaged in ongoing post-separation litigation. One party alleged that the other engaged in a sustained pattern of hostile communications and conduct following separation.

The allegations included:

• Repeated and hostile electronic communications

• Intimidating or threatening behaviour

• Conduct alleged to cause emotional distress

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The claimant sought damages under the tort of harassment recognized in Alberta Health Services v Johnston, 2023 ABKB 209.

The Court applied the four-part test from Alberta Health Services v Johnston, and found that the alleged conduct did not rise to the level required to establish tortious harassment as it did not unacceptably impact the Plaintiff’s dignity or would cause a reasonable person to fear for her safety. The court also found that the alleged conduct could not be reasonably foreseen to cause emotional distress beyond the emotional distress inevitably caused by acrimonious marital breakdown.

Importantly, the Court emphasized that not every high-conflict separation amounts to harassment.

High Conflict does not mean Harassment

The Court acknowledged that post-separation disputes often involve emotional and intense communication. However, the threshold for harassment requires conduct that is:

• Persistent

• Oppressive

• Objectively unreasonable

  
  

The Court cautioned against converting ordinary family litigation hostility into tort liability.

Context Matters

In family law disputes:

• Communication is often ongoing and necessary (parenting, financial disclosure, litigation coordination).

• Courts must assess whether the conduct exceeds what is reasonably incidental to litigation conflict.

  
  

The Court evaluated frequency, tone, and the broader factual matrix before determining whether the legal threshold was met.

Evidence of Harm Required

The Court examined:

• Whether the claimant demonstrated measurable harm;

• Whether there was evidence of emotional distress beyond upset or annoyance;

• Whether safety concerns were objectively reasonable.

  
  

Mere allegations of feeling distressed were insufficient without evidentiary support.

Although the new tort of harassment exists, the courts are cautious to use it in the context of family proceedings as it may open the flood gates in already contentious and complicated family matters.

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