A General Tort of Harassment in Alberta - An Impactful New Chapter in the Kevin J. Johnston Saga
There's been an ongoing controversy in law as to whether courts should recognize a new common law tort of harassment.
The tension is clear: There clearly are scenarios where a person's conduct doesn't fit into any established tort categories, but is sufficiently wrong and injurious that it seems fair to hold the perpetrator accountable; but on the other hand, harassment as a concept is extraordinarily broad, basically encompassing any unwelcome behaviour, so how do you craft such a tort in a way that doesn't create a floodgates of neighbour disputes and family drama getting litigated in the courts?
Recently, the Alberta Court of King's Bench concluded that such a tort exists, and that Kevin J. Johnston - a controversial figure with many legal troubles - committed it against an AHS employee. (For those who haven't heard of KJJ...lucky you. I've known about him for quite a few years, ever since he and his 'Mississauga Gazette' actively opposed the building of a mosque in the neighbourhood where I grew up.)
I'm not going to delve into the facts of the case - suffice it to say that the facts are bad, and KJJ was self-represented and had been noted in default.
The New Test
Justice Feasby set out the test for the new tort of harassment. A defendant has committed the new tort where he has:
(1) engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through or other means [sic];
(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.
(Yes, the definition of "harassment" includes the phrase "other harassing behaviour". Don't ask me what I think of that.)
The articulation suggests it's reserved for outrageous and extreme cases; however, there's a large degree of subjectivity in what's 'outrageous', and once the test is established in principle, it's tough to draw a line in the sand and say, "Sure you engaged in harassing behaviour that foreseeably caused mental distress, but it's not really all the severe, so it's not actionable." In any event, figuring out where and how to draw that line is something that will require a lot of litigation, if this test holds up at all.
The Law Up Until Now
The Ontario Court of Appeal was the most recent authoritative word on the tort of harassment in Merrifield: A lower court had recognized a tort of harassment, but the Court of Appeal overturned that, finding that the proposed new tort was basically just a relaxed version of a well-established tort of "intentional infliction of mental suffering" (IIMS) - mainly, that the harassment tort would operate on negligence principles instead of requiring intention.
But other cases involved worse facts than Merrifield. In Caplan, Justice Corbett of the Ontario Superior Court distinguished Merrifield: This case, which combined several proceedings, involved a particularly egregious case of cyber-stalking, where the defendant created anonymous online personas to spread malicious falsehoods about people she had grudges against - and about their families and friends - and this extended to the family of the lawyer who represented the plaintiffs in some of the earlier actions against her. So, for example, she started making posts accusing the lawyer's brother, a cardiologist in New Mexico, of being a pedophile and child pornographer.
Certainly, that's actionable by the cardiologist in defamation, but that doesn't quite seem to fully capture what's wrong with this: It's not JUST leveling abhorrent, vexatious, and false allegations against a respected professional, but doing so in furtherance of a campaign of harassment against his brother's clients. In particular, while it would be fairly normal for the cardiologist to get an injunction to stop her from defaming him, since he's not really the core target of her rage, that injunction wouldn't ordinarily stop her from defaming other people in the orbit of the people she holds grudges against. Treating each new defamation target as a fresh independent case would be basically playing a very expensive game of litigation whack-a-mole against a person who probably isn't capable of having a judgment enforced against her.
So there is some legitimate purpose to seeking out a new tort in this area. But considering the relatively commonplace nature of 'harassment', the extraordinary cases that cry out for recognition of a new tort are few and far between.
Other Treatments of Harassment
Criminal Harassment
As Justice Feasby points out in AHS, there is a criminal offence of harassment.
However, as I've often had to explain to clients, that's not an easy threshold to meet, because part of the test is that it causes the victim to reasonable fear for their safety (or the safety of others they know).
Unlike the new civil tort, the criminal offence isn't engaged by conduct which merely causes mental distress or impugns on somebody's dignity.
Neighbour Disputes
One of my least favourite areas of law (though one that generates some interesting stories) are neighbour conflicts. I dislike them because they're typically petty - a lengthy series of escalating microaggressions that have exaggerated effects on the parties, and where nobody comes off looking good.
The best example is an Ontario case of Morland-Jones v. Taerk, where Justice Morgan famously told the parties - educated and successful professionals - that what they need isn't a judge, but a rather stern kindergarten teacher. It's a case involving a two-way laundry list of petty grievances, from parking disputes to recording conversations to one person letting their dog pee on the other's bushes. (On my read, the plaintiffs in that action were being hypocritical terrors, conducting ongoing surveillance of the defendants and then complaining when the defendants started to maintain their own record of their interactions; and objecting to their neighbours parking on their side of the street even though they also parked on the neighbours' side of the street. The defendants took to deliberately goading them for their irrational outbursts, but I find it hard to blame them for that. I was a little disappointed that Justice Morgan didn't give them costs: They successfully defended an action that was frankly frivolous and vexatious.)
But Justice Morgan's cutting commentary made some important points about the role of the court:
A negligence-based tort of harassment with catch-all conduct to get in, capturing 'repeated communications, threats, insults, stalking, or other harassing behaviour in person or through other means' is of limitless scope. It means that, on the right facts, there might be a tort claim for "pooping and scooping into the neighbour's garbage can", "letting Rover water the neighbour's hedge", "looking at the neighbour's pretty house, parking a car legally but with malintent, engaging in faux photography on a public street, raising objections at a municipal hearing, walking on the sidewalk with dictaphone in hand...", etc.
In another recent neighbour dispute that somehow turned into a ridiculous criminal prosecution, the Quebec courts remarked that flipping the bird is a constitutional right.
Even in a world without a tort of harassment, this is the type of garbage that sometimes clutters up our courts. Imagine what happens if we tell the Morland-Joneses of the world that they actually are entitled to sue over their neighbours goading them for their irrational outbursts.
Restraining Order Cases
One of the observations that Justice Feasby makes is that the Court of King's Bench frequently makes restraining orders in respect of harassment.
This is true, and it's a problem.
This has been a concern of mine for some time. As a multi-jurisdictional lawyer, I can say that this...is not something we did in Ontario. If someone came into my office in Ontario wanting a 'restraining order', we were either putting it into the framework of "interlocutory injunctions preventing an ongoing or threatened tort", OR s.810 of the Criminal Code. (There may have been specific other statutory orders available in some specific areas like family law, but not in my practice areas.)
When I came to Alberta and saw people getting orders prohibiting, for example, their next-door neighbour from coming within 100m of their home, after a six-minute ex parte hearing in morning chambers...I found that pretty alarming.
The 'restraining order' case law is really soft in Alberta, frequently getting granted in short ex parte hearings, to self-represented applicants who simply filled out a pre-populated form, without any meaningful exploration of the RJR test, the necessity of proceeding on an ex parte basis, the appropriateness of the remedy under the circumstances, or even so much as making sure the self-repped applicants are aware of the need to make full and fair disclosure.
We've had similar issues with statutory emergency protective orders, with the Court of Appeal slapping the hand of the lower courts for handing out ex parte EPOs like "routine business" and ignoring that they're supposed to be extraordinary.
In these 'civil restraining order' cases, the statement of claim appears to be a basically hollow vessel to create the action that houses an interlocutory injunction application; it often doesn't set out any triable claim on its face. The affidavit evidence is often extraordinarily deficient, failing to set out any basis upon which the court could find urgency to warrant an ex parte order at all; irreparable harm; or even an issue to be tried. In my experience in morning chambers, watching these applications (and occasionally participating in them or bringing applications to set them aside), the courts tend to look simply for 'reasonable fear'. Not even necessarily fear of violence or some tort, and certainly not applying a 'quia timet' analysis where there's no allegation of an actual past tort. And to the extent that the application materials might not set out any basis for a reasonable fear, the Chambers Justice will typically allow that deficiency to be cured in submissions - basically treating the applicant's submissions as evidence.
It's an incredibly flawed process that frequently results in orders that materially impact the rights of parties who don't have any opportunity to participate.
I've started writing posts/articles on this subject before, but always backed off because, aside from my own anecdotal experience, it's hard to get any hard data to back any of this up. The processes are informal, don't result in reported decisions, etc. These applications are heard a LOT, but VERY few of them end up in any easily accessible public record. (I mean, yes, morning chambers transcripts are public record...if you know what you're looking for and pay for each one.)
As Justice Feasby puts it: "The volume of these orders is not evident based on a search of the case law because these orders are usually granted on an urgent basis without written reasons. In other words, the reported restraining order cases represent only the tip of the iceberg."
Indeed, Justice Feasby's reasons in AHS from paragraphs 91 to 97 significantly parallel the argument that I'd intended to make in those draft posts: "The doctrinal basis on which orders restraining harassment are granted is unclear."
But at paragraph 98, his conclusion is opposite mine: Whereas I would suggest that the fact that we're granting restraining orders, in urgent 'without notice' applications without written reasons, absent any clear basis to do so...should cause us to question whether this is an appropriate practice at all, Justice Feasby takes this practice as suggesting that there IS a right not to be harassed.
This is the tail wagging the dog: Injunctions are supposed to turn on the prior existence of a cause of action. Divining a cause of action from injunctions granted on an 'unclear' basis - particularly when those injunctions are almost invariably granted on an ex parte basis without written reasons - is a backwards way of trying to develop the common law.
Employment Relationships
As a labour/employment lawyer, I come across harassment issues in the employment context all the time. And that's a different beast, in my view, because of the nature of the employment relationship.
There are a range of contractual and statutory reasons why one might reasonably argue that an employer has an obligation to maintain a workplace free from harassment - or at least free from serious harassment. This is, from one facet, about occupational health and safety - preventing workplace conditions from arising that may lead to injury.
So if your employer permits an environment of harassment to arise that may cause mental injury, we might argue that the employer has breached some obligation to you - even if it's your co-worker, and not your manager, who is harassing you. Your employer is requiring you, as a term and condition of your employment, to engage in certain tasks, with certain people, within the work environment; they have control of the environment and a concomitant obligations to ensure that it's safe - in the sense of making sure that your colleague isn't going to run you over with a forklift, and also in the sense that your colleague isn't going to inflict emotional injury upon you.
It's the relationship with someone in control of the environment that creates a viable scenario for insisting that this 'controlling entity' maintain safety controls.
If my neighbour runs me over with his car (let's assume accidentally), I blame my neighbour. If my co-worker runs me over with a forklift, I can blame the employer.
As I said, a different beast.
In other scenarios, harassment on the basis of prohibited grounds of discrimination in the employment context can be illegal. But that's because there's specifically a statute that provides for non-discrimination in employment. No similar statutory provisions apply to my interactions with my neighbour. If I invited most of my neighbours for a BBQ, but excluded some neighbours because of their race, religion, sexual orientation, etc...that may make me a terrible person, but it's not illegal, because it's outside the contexts regulated by human rights legislation.
The Implications of This New Tort
The new tort serves as a justification for a doctrinally thin practice of giving out injunctions to prevent conduct that hasn't historically been recognized as tortious or otherwise illegal, and it will further embolden plaintiffs to seek remedies for everyday slights.
I can think of any number of employment litigation files where, with the tort framed in this way, I'd have added a co-worker or manager in their personal capacity and made out a 'harassment' cause of action.
Its application is unclear, but it's clearly wide. In fact, it's kind of a meta-tort, capturing other torts like defamation - but, you know, without all the legal tests and defences applicable to defamation.
If I publish stuff that's disparaging but provably true about another person, can that be harassment? Let's see...'repeated communications'? Check. Known to be unwelcome? Check. Impugns dignity/anticipated to cause mental distress? Probably. Causes injury? Possibly.
There ARE cases where such publications ought to be tortious, because maybe you have a legitimate interest and expectation in NOT having those things revealed...but the evolving set of privacy torts is a much better way of getting in at that - of parsing the extent of any legitimate privacy interests.
I'm not totally adverse to recognition of a general tort of harassment, but it ought to be narrow, requiring that the harassing conduct actually be otherwise-illegal and/or tortious (if not necessarily tortious toward the target of the harassment, as in Caplan).
A catch-all tort that can literally make any conduct or comment actionable, depending on context, creates too wide a scope of conduct the court has to police. As Justice Perell put it, "life can be nasty and brutish". People have personal conflicts, and that's a part of existing in society. The role of the law is to set clear boundaries on how people should behave toward others, including in the course of those conflicts, and as long as you stay within those clear boundaries, you should be able to say that you're acting within your rights.
And we have a LOT of laws setting out those limits. Municipal by-laws for noise, weed control, etc.; rules of the road and rights-of-way; property rights and trespass torts; nuisance laws and torts; prohibitions on threats, assaults, batteries, vandalism; and many more. If I engage with the neighbour I don't like, and stay on-side of all those many laws and torts, then I should be pretty safe from getting successfully sued.
A lawful act within my rights shouldn't become actionable simply because it upsets the neighbour.
Edit: Post-script
I wanted to add a comment on one point within the AHS decision: Justice Feasby suggests that, because all he's doing is 'providing a doctrinal basis for what Alberta courts have already been doing', it shouldn't open up floodgates.
That's...not really true.
What he's doing is awarding $100k in damages, which IS new. The idea that a substantial monetary claim for harassment can be made out is something that turns each and every one of those 6-ish-minute injunction applications into a full-flown litigation process that you'd expect to proceed to a trial for a final determination of the merits and remedy.
And then some.
There is - or at least, there is supposed to be - a high test for injunctive relief, requiring a person to prove the inadequacy of damages, among other things. Interlocutory injunctions would ordinarily be expected to be sought and granted in a relatively small subset of cases for any given tort.
If we assume (despite everything) that the injunctions being granted are part of that subset - only the ones where the test for an interlocutory injunctions are satisfied - then the corollary assumption is that there's an innumerable number of harassment cases where damages might be sought where injunctive relief might not have been available. In which case we should take little comfort from Justice Feasby's confidence that it won't open the floodgates.
If we don't make that assumption, and instead conclude (probably accurately) that these injunction applications aren't actually being subjected to the scrutiny ordinarily required of extraordinary equitable remedies, then, well, even the creation of a catch-all tort doesn't provide a doctrinal basis for doing that.
*****
This post does not contain legal advice, but only general legal information. It does not create a solicitor-client relationship with any readers. If you have a legal issue or potential issue, please consult a lawyer.
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