Tort of Harassment Rediscovered in Alberta

Harassment and Bullying

In 2017, the Ontario Superior Court of Justice confirmed that “harassment” was a free-standing tort in Merrifield v Canada (Attorney General), with the following elements:

  1. Outrageous conduct by the defendant;
  2. Intention on the part of the defendant to cause emotional distress or the defendant’s reckless disregard for causing emotional distress;
  3. The plaintiff’s suffering severe or extreme emotional distress; and,
  4. The defendant’s outrageous conduct to be the actual and proximate cause of the emotional distress.

Two years later the Court of Appeal for Ontario struck the lower court’s decision, finding that the tort did not exist, as we wrote about at the time.

Harassment as a cause of action went away to a large extent. In Caplan v Atas the ONSCJ confirmed that the tort of internet harassment existed where the following had taken place:

  1. the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance;
  2. the defendant intends to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and
  3. the plaintiff suffers such harm.

Last week, in Alberta Health Services v Johnston, the Alberta Court of King’s Bench once again discovered that the tort of harassment exists as a free-standing cause of action, consisting of the following elements.

  1. The defendant engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through or other means;
  2. That the defendant knew or ought to have known was unwelcome;
  3. The defendant’s conduct 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. The defendant’s conduct caused harm to the plaintiff.

Interestingly, this was not in an employment context but related to the actions of an individual harassing a government employee for doing their job during the pandemic. The plaintiff was awarded $100,000.00 for the defendant’s actions in harassing her (among other damages).


This is an out of province decision of a lower court that has not been tested on appeal. It also stands in direct contrast to the Court of Appeal’s holding in Merrifield. Whether this will be an interesting piece of trivia or binding law remains to be seen. For right now, however, harassment as a cause of action once again exists in Canada’s legal system.

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