Casual Legal: Alberta’s new tort of harassment

By Case Littlewood
Reynolds Mirth Richards Farmer LLP
Alberta Municipalities Casual Legal Service Provider

Courts in Alberta recognized a brand-new common law tort in 2023: the tort of harassment. The tort arises when someone repeatedly uses harassing words or repeatedly engages in harassing behaviour that could cause a person to reasonably fear for their or their family’s safety, or that impugns the other person’s dignity, and causes the other person harm. Threats and insults are examples of harassing words, while stalking is an example of harassing behaviour.

While this new tort is young and may evolve, it is important to know when it might arise and what its elements are. Employers in particular should be aware of potential vicarious liability for harassment committed by their employees.

In Alberta, someone commits the tort of harassment when they satisfy the following four elements:

1. They engage in repeated communications, threats, insults, stalking, or other harassing behaviour, either in person or through other means. 
2. They knew, or they ought to have known, that the behaviour was unwelcome.
3. The behaviour either impugns the dignity of the other person, would cause a reasonable person to fear for their or their family’s safety, or could foreseeably cause emotional distress.
4. The behaviour causes the other person harm. These criteria narrow the range of situations where the tort may arise. Not all harassing behaviour will qualify.

In Alberta Health Services v Johnston, the case that first recognized the tort of harassment in Alberta, these elements were met. 

First, the defendant repeatedly spoke of the plaintiff during an online talk show and used derogatory terms to describe her. He mocked her and her family and showed pictures of them that he found online. This was harassing behaviour. Second, Mr. Johnston knew (or he ought to have known) that it was unwelcome. Third, the behaviour would cause a reasonable person to fear for their safety and the safety of their family. In the case, the plaintiff testified that she feared for her own safety and her children’s safety. The police had even warned her not to let her children take the bus. Fourth, Mr. Johnston’s behaviour harmed the plaintiff.

It is important for employers to be aware of the tort's existence. Employees and former employees may rely on the tort in response to harassment in the workplace. In some situations, employers may be vicariously liable if their employees are found to have committed the tort. This is an opportunity for employers to ensure they respond quickly to allegations of workplace bullying or harassment, provide regular training on proper workplace behaviour, and have up-to-date harassment and bullying policies.

The new tort may also present an opportunity for employers and municipalities to respond to harassing behaviour directed at themselves and their employees. For example, terminated employees may be found to have committed the tort if they repeatedly harass the human resources employees of their former employer.

While the tort of harassment may be a powerful tool, it remains to be seen how courts will apply the tort to different situations. It will take the courts time to work out how the new tort applies in various situations. Just which words and behaviours will qualify as “harassing” will depend on the situation.

To access Alberta Municipalities' Casual Legal Helpline, Alberta Municipalities members can call toll-free to 1-800-661-7673 or send an casuallegal [at] abmunis.ca (email) to reach the municipal legal experts at Reynolds Mirth Richards and Farmer LLP. For more information on the Casual Legal Service, please call 310-MUNI (6864) or send an riskcontrol [at] abmunis.ca (email) to speak to Alberta Municipalities Risk Management staff. Any Regular or Associate member of Alberta Municipalities can access the Casual Legal Service.

DISCLAIMER: This article is meant to provide information only and is not intended to provide legal advice. You should seek the advice of legal counsel to address your specific set of circumstances. Although every effort has been made to provide current and accurate information, changes to the law may cause the information in this article to be outdated.