Legal Update – Alberta Health Services v Johnston, 2023 ABKB 209

Background

Kevin J. Johnston, the defendant, was a mayoral candidate in Calgary in 2021. During his political campaign, he spread misinformation, conspiracy theories and made various hateful statements on various public platforms. He frequently targeted Alberta Health Services (“AHS”) as a whole and two AHS employees (together with AHS, the “Plaintiffs”) in particular.

In May 2021, AHS obtained an interim restraining order against Johnston as part of a defamation action to be brought by AHS against Mr. Johnston, and served their Statement of Claim in June 2021. The Plaintiffs sued Mr. Johnston for defamation, invasion of privacy, assault and harassment.

Justice Feasby decided that the AHS as an entity could not bring a case of defamation, as although it was an unelected government authority, government still held ‘significant power and control[1]’ over it and could potentially be used by government to stifle free speech via defamation lawsuits. However, AHS was allowed to bring claims of harassment and ask for a permanent restraining order on behalf of its employees and patients, many of whom might not otherwise be able to bring a lawsuit against Mr. Johnston on their own.

The Court also determined that of the two AHS employees, only one was able to show sufficient evidence to prove that Mr. Johnston had committed tortious harassment against her using public platforms to insult her and her family, encouraging his listeners to harass her and eventually causing her to fear for both her own and her family’s safety.

Issues

Before determining the causes of action and awarding damages, the Court identified two issues of law to resolve:

1. Could an unelected public body bring a defamation claim?
2. Did a tort of harassment exist in Alberta?

Can an unelected public authority bring a defamation claim?

Under Canadian, US and UK law, a democratically elected government authority cannot bring a suit in defamation to ensure that individuals are able to criticize the government freely and without fear of a civil lawsuit for defamation being brought against them. There are exceptions; universities, for example, which could be considered as government bodies to an extent, are allowed to bring claims in defamation on the grounds that public interest favoured protecting ‘institutions of learning’ and that they did not take part in the government. However, this raised the question of how to distinguish which unelected government bodies could bring defamation claims.

Following the Supreme Court of Canada’s decision in Douglas/Kwantlen Faculty[2], Justice Feasby relied on the Regional Health Authorities Act, RSA 2000, c R-10 (the “RHAA”), the empowering legislation of the AHS. Although AHS board directors had not been democratically elected, they were directly appointed by the Minister of Health and served at the Minister’s pleasure. The RHAA identified AHS as ‘Alberta’s single health authority’, with the Minister of Health and the Lieutenant Governor in Council both authorized to give directions to the AHS on ‘its priorities and the exercise of its powers[3]’. Government was required to approve the AHS budget. Although the AHS possessed some discretion, its decisions could be overridden by government at any time. As such, AHS was considered to be a government actor and could not bring a claim for defamation against Mr. Johnston.

Was there a tort of harassment in Alberta?

Canadian courts have generally resisted recognizing a formal tort of harassment, with the Ontario Court of Appeal stating that existing cases ‘are not authority for recognizing the existence of a tort of harassment in Ontario, still less for establishing either a new tort or its requisite elements[4]’. This did not preclude them from recognizing a tort of internet harassment in a number of subsequent cases. In justifying the creation of a tort of harassment, Justice Feasby stated that the tort of harassment should not be considered a mere extension of the tort of intentional infliction of mental suffering; most significantly, because the tort of intentional infliction of mental suffering required intention and a visible or provable illness. A defendant to the tort of harassment could act recklessly and without regard for the consequences of his words and/or actions, and a victim of harassment might change their behaviour in order to avoid developing a visible or provable illness. As such, victims of harassment might not meet the provable illness requirement needed to demonstrate a tort of intentional infliction of mental suffering.

To prove the tort of harassment, a defendant must have:

1. Engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through 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 emphasised that a crucial element to proving harassment was that it must be recurring; a one-off threat or other offensive action could give rise to an actionable claim, but not constitute harassment. Based on these elements, the Court held that Mr. Johnston had harassed an AHS employee.

The Court held that although AHS’ pleadings did not sufficiently prove a cause of action against Mr. Johnston, but agreed that, in fulfilment of its duty as an employer and a medical services provider, AHS was acting on behalf of its ‘individual employees…and patients’, who might otherwise lack the resources required to bring an injunction against Mr. Johnston on their own. In balancing Mr. Johnston’s right to free speech against AHS’ duty to provide a safe and peaceful environment for its employees and patients, the Court allowed Mr. Johnston to protest and speak against AHS, but ordered that he stay a safe distance from any entrances to AHS facilities and hospital entrances to avoid causing distress or inconvenience to those entering AHS premises for legitimate purposes.

Key Takeaways

There are a number of key takeaways from this decision.

An unelected government body may be precluded from pursuing defamation claims in certain instances

Freedom of speech is protected under section 2(b) of the Canadian Charter of Rights and Freedoms; individuals must be allowed the ‘unfettered ability to criticize the government[5]’ without fear of being on the receiving end of a defamation claim.

This decision seems to extend this restriction to unelected government bodies (like AHS) where they are sufficiently controlled by government. It sets out factors to consider when determining the level of control that the government has over such a body and whether it can bring a claim in defamation. Such factors include but are not limited to the body’s mandate under legislation, scope of discretion, how its members are chosen and the scope of authority which the government can choose to exert over the unelected government body.

There is a tort of harassment in Alberta, but the law around this will likely continue to develop

The courts have now recognized that individuals experiencing harassment might not be able to meet the test required to prove that someone has committed the tort of “intentional infliction of mental suffering”; nor should they be required to wait for such consequences to manifest before being granted relief.

The tort of harassment addresses words or actions which could cause a person or their family to fear for their safety, but do not cause sufficient harm to meet the provable illness requirement for intentional infliction of mental suffering or other torts.

While this case confirms that the tort of harassment exists in Alberta, it is critical to note the following:

• Not all unwelcome communications or behaviour will constitute “harassment” under this tort. The four elements of harassment set out in this case will be assessed in future cases on an objective basis, not based on the subjective experience of the person alleging harassment. As with any legal claim (and particularly one based on a new legal test), there is risk.
• This is an area of law which will likely continue to develop. As it does, our understanding of the limits, requirements, and boundaries associated with the tort of harassment will deepen.

[1] Alberta Health Services v Johnston, 2023 ABKB 209, para 56

[2] Douglas/Kwantlen Faculty Assn. v Douglas College, [1990] 3 SCR 570

[3] Alberta Health Services v Johnston, 2023 ABKB 209, para 56

[4] Merrifield v Canada (Attorney General), 2019 ONCA 205, para 36

[5] Alberta Health Services v Johnston, 2023 ABKB 209, para 32