Alberta Health Services v Johnston, 2023 ABKB 209

Court of King’s Bench of Alberta Citation: Alberta Health Services v Johnston, 2023 ABKB 209 Date: 20230412 Docket: 2101 06254 Registry: Calgary Between: Alberta Health Services, Sarah Nunn, and Dave Brown Plaintiffs - and - Kevin J. Johnston Defendant _______________________________________________________ Reasons for Judgment of the Honourable Justice Colin C.J. Feasby _______________________________________________________ Introduction [ 1 ] Kevin J. Johnston enjoyed a moment of notoriety as candidate for mayor of Calgary in 2021.

During his mayoralty campaign, on his eponymous online talk show, and anytime there was a microphone nearby, Mr. Johnston spewed misinformation, conspiracy theories, and hate. Among his favourite targets were Alberta Health Services (“AHS”) and Sarah Nunn, who was employed by AHS as a public health inspector. [ 2 ] The Plaintiffs assert that they were defamed by Mr. Johnston and they seek a significant award of damages and a permanent injunction restraining Mr. Johnston from making defamatory statements. The Plaintiffs further assert that Mr.

Johnston’s threatening and abusive conduct constitutes “tortious harassment,” an invasion of privacy, and assault. [ 3 ] To decide this case, I am required to consider whether the pleaded causes of action have been made out and then, if the causes of action are established, assess the quantum of damages. This case raises two issues where the law is unsettled. First, can a public authority like AHS maintain an action for defamation? Second, is there a tort of harassment in Alberta?

Procedural Background [ 4 ] On May 14, 2021, AHS obtained an ex parte court order enjoining Mr. Johnston’s conduct on an interim basis from ACJ Rooke (the “Rooke Restraining Order”). The application was predicated, in part, on a defamation action to be brought by AHS and AHS health inspectors. [ 5 ] On June 3, 2021, the Statement of Claim commencing this proceeding was filed. On June 8, 2021, the Statement of Claim was served on Mr.

Johnston in the Calgary Remand Centre (“CRC”) where he was being held at the time for contempt of court for contravening the Rooke Restraining Order. [ 6 ] ACJ Rooke found on September 15, 2021 that the service of the Statement of Claim on Mr. Johnston at the CRC was valid. The same day Mr. Johnston was noted in default for not filing a Statement of Defence. The order validating service of the Statement of Claim and the noting in default were served on Mr. Johnston. [ 7 ] The Plaintiffs moved for default judgment before Justice Armstrong on June 24, 2022.

He directed that this matter be set down for a Special Chambers hearing so that the following issues could be determined: (

a) Whether the causes of action alleged in the Statement of Claim are sufficiently made out to grant the application for default judgment; (

b) An assessment of the quantum of damages sought in the Statement of Claim; and (

c) Whether a permanent injunction enjoining the conduct of the Respondent should be granted and, if so, on what terms. [ 8 ] At the commencement of the present hearing, Mr. Johnston requested a 90-day adjournment on the grounds that he had not received the application materials. According to Mr. Johnston, he did not receive the application materials because they had been sent to an email address that he uses for his online talk show and that several other people have access to the email account. He speculated that someone else who had access to the account must have misplaced or deleted the application materials.

He also asked for time to retain counsel. [ 9 ] The Plaintiffs were not required to serve the application materials on Mr. Johnston. Following the noting in default and service of the noting in default, the Plaintiffs were entitled to proceed ex parte . The evidence shows that the Plaintiffs served the application materials for this hearing on Mr. Johnston at his email address nevertheless. I am satisfied that Mr.

Johnston received the application materials sent to his email address even though others may have access to the account because he used that same email address to correspond with my assistant to arrange for his attendance at this hearing by video. Further, it was common ground between counsel for the Plaintiffs and Mr. Johnston that Mr. Johnston was in attendance by video before Justice Armstrong on June 24, 2022. Indeed, at that time, he apparently asked for time so that he could retain counsel. Despite clearly knowing about the noting in default and that the present hearing was pending for nine months, Mr.

Johnston did not take any steps to set aside the default judgment, nor did he do anything to obtain counsel. Accordingly, I denied his adjournment request. Factual Background [ 10 ] Counsel for the Plaintiffs describes AHS as a regional health authority as defined by the Regional Health Authorities Act , RSA 2000, c R-10 (“ RHAA ”). This is true, but since the amalgamation of the disparate regional health authorities around the province in 2008, AHS is effectively the sole provider of public health care services in Alberta. [ 11 ] Ms. Nunn and Mr. Brown are AHS employees.

They work as public health inspectors and are appointed as “executive officers” under the Public Health Act , RSA 2000 c P-37 (the “ PHA ”). Ms. Nunn and Mr. Brown are responsible for educating Albertans about and enforcing the mandate of the PHA and the orders of the Chief Medical Officer of Health (“CMOH”). During the time relevant to this proceeding, this included enforcing CMOH orders concerning the COVID-19 pandemic. [ 12 ] Mr. Johnston was a resident of Calgary at the time relevant to this proceeding.

He was a self-appointed spokesperson for Albertans who opposed public health measures intended to mitigate the COVID-19 pandemic. He was also a mayoral candidate, the host of an online talk show, and prodigious creator of social media. Mr. Johnston’s Statements [ 13 ] At the outset, it is useful to provide a sampling of Mr. Johnston’s statements to give context for the analysis that follows. Mr.

Johnston’s statements are the basis for the Plaintiffs’ tort claims and providing context here will avoid repetition later in the discussion of the separate torts. [ 14 ] The excerpts reproduced in the following paragraphs are drawn from the extensive body of video clips adduced by the Plaintiffs and attached as exhibits to their various affidavits. These excerpts are representative of the tone and content of the hours of content created by Mr. Johnston expounding on his views of AHS and the public health inspectors who work for AHS. [ 15 ] Mr. Johnston in a monologue on his online talk show, The Kevin J.

Johnston Show , summarized his modus operandi as follows: Get this. Alright. Get this into your heads. If your wives your husbands and your kids are over 18, they’re adults, they are all the beneficiaries of your illegal activity. I’ m coming after each and every one of you. This is something you need to consider. All of you

are criminals, every single one of you. I have no respect for anyone at Alberta Health Services. I’ m going to come at you with everything that I have got. I’m going to come at you with full vitriol and full malice. You have never once come across a guy like me who cannot wait to see each and everyone of you suffering the way you made all of us in Alberta suffer. You wanted a war? You’re going to get one. In fact, AHS, the WAR IS ON. [ 16 ] During an interview with CTV, which Mr.

Johnston recorded and broadcast on his show, he told reporter Tyson Fedor the following: AHS has gone out of their way to commit the following crimes... criminal trespass, criminal harassment, extortion, intimidation, and terrorism.... Obviously, we’re going to put their names out in public... we’re going to talk about them....

We are going to be utilizing the law to bring these criminals who work for AHS to justice, and believe me, they are going to go to prison, these are people who have committed heinous crimes against the people of Calgary and I’m not going to quit until they are in jail. [ 17 ] In addition to repeatedly stating an intention prosecute AHS employees for various crimes, Mr. Johnston indicated his desire to financially harm AHS employees.

He said, “My goal is to bankrupt AHS members....” He elaborated on how he was going to financially harm AHS employees at an event at the Whistle Stop Café staged to defy a public health order. Mr. Johnston addressed the gathered crowd as follows: Hey, AHS, repeating what I said this morning, we’re going to arrest you for culpable homicide and then we’re taking your houses and bank accounts, you’re not getting them back. Those are going to be liquidated and spent on restoring Calgary business and fixing the lives you’ve ruined. You’re just following orders?

Didn’t work for the Nazis either, isn’t going to work for you. I have zero sympathy. We’re going to have Nuremburg trials in Calgary folks, that’s what’s happening. I’ve truly had enough and you know I’ll be smiling the whole time I do it. [ 18 ] Mr. Johnston’s bombastic statements show that he recognized that violence by those allied with him was a possibility and, at the same time, he feigned a disavowal of violence. He said “You AHS idiots don’t seem to realize you’re pushing way too far. Now I don’t condone violence but when it happens to you, you’re going to deserve it.” [ 19 ] Mr.

Johnston hosted Artur Pawlowski on his show. Mr. Pawlowski was a vocal opponent of public health measures to control COVID-19. Mr. Pawlowski called AHS public health inspectors “villains, Nazis, Gestapo, Communists, Fascists” for attempting to shut down services at Mr. Pawlowski’s Church. Mr. Johnston chimed in saying “this type of behaviour is highly fascist, highly communistic.” At around the same time, Mr. Johnston wrote and posted an

article on his website referring to Ms Nunn titled “AHS Nazi Shows Up at Pastor Artur Pawlowski’s Church and Get Shot Down in Flames.” [ 20 ] On several occasions, Mr. Johnston engaged in rants on his show about Ms. Nunn. His rants about Ms. Nunn, were accompanied by pictures of Ms. Nunn and her family that he acquired from her unlocked social media accounts. His rants belittled Ms. Nunn and her husband and were filled with pejorative descriptions. His favourite description for Ms. Nunn was “terrorist”. At one point, he said that Ms. Nunn’s husband “looked retarded.” He reproduced pictures of Ms.

Nunn’s family with the faces of her children obscured. The following screed is representative of his statements about Ms. Nunn: If you’re friends with this Sarah Nunn person, when I’m mayor, you’re going to be investigated as well.... I intend to make this woman’s life miserable, I intend to destroy this woman’s life like she has destroyed the lives of Calgarians, I am the only one who’s going to hit public office who’s going to fight for you Calgary.

If anyone like this person here, this useless individual, decides to go to war with a Calgary businessperson, she’s going to jail, and I’m going to gladly go see her in the jail cell and have a little chit chat with her about how and why she’s there and what we plan to do ... she’s going to have to fight terrorism charges. [ 21 ] He said to Mr. Fedor of CTV, “when you look, for example, at that Sarah Nunn ... because she’s a horrible human being.

Her Facebook page is rife with photos of her drunk out of her mind, the woman really does go out of her way to enjoy her wine, and we the taxpayer are paying for her to get loaded....” Later, speaking with CBC’s Meghan Grant, Mr. Johnston called Ms. Nunn “an alcoholic.” [ 22 ] The unfortunate problem with tort claims based on damaging statements, particularly defamation, is that the statements must be repeated so that they may be analyzed. The repetition of the statements by the Court can re-victimize a plaintiff. So let me say clearly that Mr. Johnston’s statements about Ms. Nunn are both untrue and unfair.

The pictures that Mr. Johnston harvested from her social media depict a person enjoying her life with her husband, family, and friends. Nothing about the photos provides even a shred of support for the scorn heaped on Ms. Nunn by Mr. Johnston. Strategic Lawsuits Against Public Participation (“SLAPP”) [ 23 ] As a preliminary matter, I must address Mr. Johnston’s assertion that this action is a SLAPP suit and should be dismissed on that basis. Mr.

Johnston wrote the following in an email to the Court: [The Plaintiffs] advanced a defamation lawsuit in order to silence me for criticizing and exposing AHS and AHS members for not following COVID mandates and policies set out by the government of Alberta. Knowing this, [the Plaintiffs] asked for a temporary injunction to stop me from campaigning for Mayor of Calgary the way that I wanted to, needed to, and had the right to. In fact, this infringed on my

Section 2 Charter rights. This is a violation of my

Section 2(

b) rights. [ 24 ] During oral argument, Mr. Johnston cited the Protection of Public Participation Act, 2015 , SO 2015 which amended the Ontario Courts of Justice Act , RSO c 43, in support of his position. This Ontario SLAPP legislation, of course, has no bearing on matters here in Alberta. Alberta has no SLAPP legislation, though the Court has the power to strike or dismiss suits that are an abuse of process: Rule 3.68. ACJ Rooke in Unrau v National Dental Examining Board , 2019 ABQB 283 at paras 200-204 described SLAPP actions as an abuse of process.

[25] The question of whether the claim brought by AHS is a SLAPP and should be dismissed on the grounds of abuse of processneed not be decided given my conclusions below on the issue of whether AHS can maintain an action in defamation. It is necessary,however, to consider whether the claim brought by the individual plaintiffs is a SLAPP and should be dismissed pursuant to Rule 3.68on the grounds that it is an abuse of process. [26] The Ontario Courts of Justice Act, s 137.1 sets out test to determine whether a SLAPP should be dismissed.

This test is auseful framework to guide the exercise of my exercise of discretion pursuant to Rule 3.68.

Subsection 3 provides that subject tosubsection 4, the Court must “dismiss the proceeding against the person if the person satisfies the judge that the proceeding arises froman expression made by the person that relates to a matter of public interest.” Subsection 4 provides that an action should not bedismissed if it appears to have merit, there is no valid defence, and “the harm likely to be or have been suffered by the responding partyas a result of the moving party’s expression is sufficiently serious that the public interest in permitting the proceeding to continueoutweighs the public interest in protecting that expression.” [27] The Plaintiff’s action targets Mr.

Johnston’s expression on a subject of public interest, the appropriateness of public healthmeasures, though there is no public interest in the personal life of Ms. Nunn or that of her family. As the balance of these Reasons willexplain, Ms. Nunn’s action has merit. And because this is a default judgment proceeding, it has already been established that Mr.Johnston has no defence. The public interest in permitting Ms. Nunn’s action to continue outweighs the public interest in protecting Mr.Johnston’s expression. As is evident from the sampling of Mr. Johnston’s comments reviewed above, his attacks on Ms.

Nunn weredeeply personal and not appropriate public discourse. Ms. Nunn was a private figure – she was not a politician or a member of the AHSleadership team – who was unwillingly thrust into the public spotlight by Mr. Johnston. Mr. Johnston’s political candidacy did not givehim a licence to turn Ms. Nunn and her family into the subject of public ridicule. The claim brought by Ms. Nunn is not an abuse ofprocess. Can AHS as a Public Entity Bring a Defamation Claim? [28] Before I consider whether Mr.

Johnston’s statements were defamatory, I must consider the threshold question of whetherpublic entities can bring defamation claims. AHS identified this issue and provided the Court with two relevant cases shortly before thehearing. I pointed to the parties to academic discussion of the issue. Given that the ability of AHS to maintain a defamation claim wasraised late in the process, I gave both parties the opportunity to supplement their argument by providing cases and short writtensubmissions the week following the hearing. Both AHS and Mr. Johnston availed themselves of this opportunity.

Canadian Cases [29] The question of whether a public authority can bring a claim in defamation has only been considered once by an appellatecourt in Canada: City of Prince George v British Columbia Television System Ltd., (1979) (BC CA), 95 DLR (3d)577 (BCCA). Prince George moved to strike parts of British Columbia Television’s Statement of Defence that pleaded that themunicipality could not maintain an action in defamation.

The Court struck the pleading with Justice Aikins holding at 585: Counsel suggests that if municipal corporations have the right to sue for libel that this right would give municipalities the power tosupress legitimate and proper criticism by threats of legal proceedings.

The short answer to counsel’s submission, founded on freedom ofspeech, is simply that that right, under our law, must be exercised subject to the law of defamation which affords everyone protectionagainst injury to reputation by untrue imputation. [30] Prince George was followed in Kenora (Town) Police Service v Savino, [1995] OJ No. 486 (Ontario Court of JusticeGeneral Division). Kenora was a lawsuit brought by the police against a lawyer who represented the family of a deceased indigenousman who were suing the police for wrongful death.

The lawyer repeated the allegations made in the wrongful death suit outside court sothe police service commenced a claim in defamation to protect its reputation. The Court, just as in Prince George, declined to strike thepolice’s claim for defamation. A similar approach was taken in Windsor Roman Catholic Separate School Board et al v Southam Incet al, (1984) (ON SC), 46 OR (2d) 231 (Ont.

HCJ). [31] More recent cases concerning the ability of municipalities to claim in defamation have declined to follow Prince Georgebecause it was decided pre-Charter: Halton Hills (Town) v Kerouac (2006), (ON SC), 270 DLR (4th) 479;Montague (Township) v Page (2006), (ON SC), 79 OR (3d) 515. Both Justice Corbett in Halton Hills and JusticePedlar in Montague considered international case law to assist them in reaching the conclusion that a right of government to sue fordefamation was incompatible with the Charter. Justice Pedlar in Montague concluded: I find that it is inconsistent with s. 2(

b) of the Canadian Charter of Rights and Freedoms for a government entity, such as the plaintiffherein, to bring a civil action for defamation against one of its citizens. The risk of a governing body using defamation as a tool to inhibitcriticism of institutional governmental activities, and thereby inhibiting free speech outweighs the risks of allowing such criticism, evenif intemperate. [32] Both Halton Hills and Montague rest on a democratic rationale; essentially, our democratic form of government requiresopen discussion which must include the unfettered ability to criticize the government.

Justice Pedlar went on to conclude in Montagueat para 32 that citizens enjoy “an absolute privilege against the threat of a civil action for defamation being initiated against them by theirgovernment, which action I find would be contrary to s. 2(

b) of the Canadian Charter of Rights and Freedoms.” But Justice Corbett inobiter dicta in Halton Hills at para 50 questioned whether this privilege “applies with equal force to all public bodies.” [33] Justice Garson in Dixon v Powell River (City), 2009 BCSC 406 disavowed Prince George on the basis that it was decidedpre-Charter and followed Halton Hills and Montague. Garson J at para 37, citing Cory J in Hill v Church of Scientology of Toronto, (SCC), [1995] 2 SCR 1130 at para 85, observed that the law of defamation should develop in accordance with Chartervalues. She opined at para 46 that “the law of defamation and the constitutional law of freedom of speech ought not to develop in two

separate streams incorporating different values.” Garson J concluded at para 47 saying that “[i]t is antithetical to the notion of freedom of speech and a citizen’s right to criticize his or her government concerning its government functions, that such criticism should be chilled by the threat of a suit in defamation.” Powell River was followed in Wilson v Switlo , 2011 BCSC 1287 at para 130 where it was found that band councils, being democratically elected bodies, were analogous to municipalities and could not maintain actions in defamation. [ 34 ] Justice Ramsay in Niagara Peninsula Conservation Authority v Smith, 2017 ONSC 6973 followed Halton Hills and Montague to conclude that the Conservation Authority, an appointed body, could not maintain an action in defamation.

Ramsay J, however, did not consider whether the absence of the democratic rationale that undergirded the outcomes in Halton Hills and Montague affected the extension of the prohibition on defamation actions to a non-elected public authority. [ 35 ] While there is a paucity of appellate authority on the question, there appears to be a consensus among superior courts in Canada that democratically elected government, including municipal governments, cannot sue in defamation. What is less clear is whether public bodies that are not democratically elected may bring suits in defamation.

International Cases [ 36 ] The leading US case is City of Chicago v Tribune Co , 3017 Ill. 595 (SC IL, 1923). The Tribune newspaper published a series of articles saying that Chicago was on the brink of insolvency. Chicago sued in defamation claiming that, among other things, the stories published by the Tribune had the effect of making borrowing more expensive for the city. Much like the Canadian cases discussed in the previous

section of these Reasons, an issue in Chicago was how the common law of defamation should develop given a constitutional commitment to the principle of freedom of speech. Specifically, the Court considered whether citizens and the press enjoyed an absolute privilege with respect to criticizing government. [ 37 ] Though Chicago was decided in the shadow of a constitutional provision protecting free speech, the First Amendment, there is no meaningful discussion of the First Amendment, nor can it be said to be the basis on which the case is decided. Chicago is a case about the development of the common law.

Thompson CJ, in developing the common law, takes stock of the history of defamation law in the US as well as foundational principles of public law and constitutional law. [ 38 ] Thompson CJ found in Chicago that citizens enjoy an absolute privilege when criticizing government so Chicago could not maintain an action for defamation. A subtle difference from the Canadian decisions is that Thompson CJ explained the reason for this in terms of sovereignty, not democracy. According to Thompson CJ, because the people are conceived of as sovereign, government is the delegate or servant of the people.

For him, the right to discuss government without restriction, flows from the relationship between the people and their government not from the democratic process. [ 39 ] Thompson CJ in Chicago explains at 607 that “[a] despotic or corrupt government can more easily stifle opposition by a series of civil actions than by criminal prosecutions....” Among the reasons identified by Thompson CJ that civil actions pose a significant risk of stifling opposition that resonate today in Canada are that the civil standard of proof is lower than the criminal standard of proof and constitutional protections that exist in criminal proceedings do not apply to civil proceedings.

To these factors, I add that the principle of prosecutorial independence in criminal matters ( Krieger v Law Society of Alberta , 2002 SCC 65 at para 30 ) does not apply to civil actions by government. [ 40 ] The US Supreme Court in New York Times Co v Sullivan , 376 US 254 (1964) at 277 and 291 cited Chicago with approval indicating that it was an accurate statement of US law.

The absolute privilege to criticize government established in Chicago has since been found to apply to a range of public authorities including police forces and public schools: see Hilary Young, “Public Institutions as Defamation Plaintiffs” (2016) 39 Dalhousie L.J. 249 at 253-54. [ 41 ] The House of Lords considered whether a democratically elected municipal council could maintain an action for defamation in Derbyshire County Council v Times Newspapers Ltd , [1993] AC 534 (HL) .

Lord Keith was careful to say at 551 that his decision was based “upon the common law of England without finding any need to rely upon the European Convention [guarantee of freedom of expression].” He went on to observe that, as applied to the facts of the case before him, there was no difference between the protection afforded to freedom of expression by the common law and

article 10 of the European Convention on Human Rights . [ 42 ] Lord Keith concluded that the municipal council could not maintain an action in defamation. He explained the rationale for denying governmental authorities the right to sue in defamation at 547: It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body , should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech. ...

I regard it as right for this House to lay down that not only is there no public interest favouring the right of organs of government, whether central or local, to sue for libel, but that it is contrary to the public interest that they should have it. It is contrary to the public interest because to admit such actions would place an undesirable fetter on freedom of speech [emphasis added]. [ 43 ] Lord Keith quoted extensively from Chicago and endorsed its rationale. What is unclear is whether the House of Lords intended its ruling in Derbyshire to apply to unelected governmental bodies.

The underlined words in the passage quoted above suggests that the House of Lords did not intend its ruling to be limited to democratically elected public bodies. This

interpretation is further supported by Lord Keith’s extensive quotation from Die Spoorbond v South African Railways

(1946) SALR 999, a case where the South African Supreme Court held that government, including the Crown corporation that controlled the railways in South Africa, has no right at common law to sue for defamation. [ 44 ] A lower court decision a few years after Derbyshire concluded that the British Coal Corporation, whose board was appointed

by the government, could not sue in defamation: British Coal Corporation v National Union of Mineworkers and Another [1996]EWHC 380 (QB). Justice French held: The observations of Lord Keith seem to me, with respect, to be directly in point in the instant case.

It is true that the British CoalCorporation is not a democratically elected body but, in the first place, Lord Keith (as I have just emphasised) does not confine hisreasoning to democratically elected governmental bodies and, in the second place, the provisions of the relevant statutes show how closeis the control exerted by or on behalf of the minister, himself a member of a democratically elected government, over the activities of theNational Coal Board now the British Coal Corporation. [45] English law does permit universities, many of which can be viewed as public bodies in some respects, to maintain actions indefamation: Duke v University of Salford, [2013] EWHC 196 (QB).

Justice Eady concluded at para 4 that Universities were not “to beequated with central or local government” even though they “receive large sums of public money and that they have to comply withvarious statutory provisions.” He then quoted with approval Hong Kong Polytechnic University v Next Magazine Publishing Ltd,[1997] 7 HKPLR 286 at 291: In my judgment, the consultations which govern a body like a university are far removed from those in the Derbyshire CountyCouncil case. In no way does the university take

part in the government of Hong Kong. It is not an organ of government, democraticallyelected or otherwise.

If public interest be the test, I would hold that it strongly favours the protection of the reputation of institutions oflearning like the university. [46] The analysis undertaken in University of Salford to determine whether an entity is government and precluded from bringing adefamation action resembles the analysis required by Canadian law to distinguish between government and non-government entities forthe purpose of determining whether the Charter applies: see, for example, Eldridge v British Columbia (Attorney General), (SCC), [1997] 3 SCR 624.

Public Entities Functioning as Government Cannot Maintain Defamation Actions [47] As I observed earlier in these Reasons, Canadian law is clear that democratically elected governments, including municipalgovernments and band councils, cannot maintain an action in defamation.

The unsettled questions are whether this inability to sue fordefamation extends to unelected government bodies and, if so, where is the line drawn. [48] Following Chicago and Derbyshire and the US and UK caselaw applying those decisions, I conclude that the absoluteprivilege to criticize government extends to unelected government bodies and, as such, those bodies do not have the capacity to maintainan action in defamation. The reason for this is that a significant part of government is conducted through administrative bureaucracy orCrown corporations.

To allow what are, in essence, organs of government to sue in defamation would be to allow government to doindirectly what it cannot do directly. Put simply, the fact that government may operate through different ministries, agencies, andcorporations does not cloak those bodies with the power to sue in defamation. [49] The reality that government bodies may not be elected is irrelevant to the question of whether they should have the capacity tosue in defamation.

Criticism of government is essential in a democratic society, but to understand the value of criticism as being limitedto democratic bodies is to miss the point.

The governed have the right to criticize the governors; that is part what it means for the peopleto have a sovereign will: Reference re Secession of Quebec, (SCC), [1998] 2 SCR 217 at paras 61-68 discussing theconnection between the sovereign will of the people, democracy, and the “continuous process of discussion.” If governmentresponsibility is devolved or delegated to an unelected body, individuals have the right to criticize that unelected body without fear ofretribution by way of a civil action for defamation. [50] The more vexing question is where to draw the line between public bodies that are sufficiently connected to government thatthey are denied the right to sue in defamation and public bodies that are sufficiently independent of government that they should beafforded the right to sue in defamation. [51] Professor Young in her excellent article, “Public Institutions as Defamation Plaintiffs” suggests that all institutions subject tofreedom of information obligations be denied the right to sue in defamation.

Her proposed approach would deny the right to sue indefamation to a broad range of quasi-governmental bodies. Such an approach is ill-suited to implementation through judicial decision-making. [52] Another way to resolve the issue is to adopt the approach that courts have developed under Charter s 32 to determine whetherthe Charter applies. Paperny JA in Pridgen v University of Calgary, 2012 ABCA 139 at para 78 explained that there are five categoriesof government action or government actor to which the Charter applies: 1. Legislative enactments; 2. Government actors by nature; 3.

Government actors by virtue of legislative control; 4. Bodies exercising statutory authority; and 5. Non-governmental bodies implementing government objectives. [53] Based on the principles that I reviewed above, the right to sue in defamation should be denied to government actors by natureand government actors by virtue of legislative control. I emphasize that I have reached this conclusion based on common law reasoningas in Derbyshire, not using a Charter values approach.

Whether the right to sue in defamation should be denied to bodies exercisingstatutory authority and non-governmental bodies implementing government objectives is less clear, need not be decided in the present

case, and, accordingly, should be left to be decided by other Courts in appropriate cases in the future. Is AHS a Government Actor? [54] AHS submitted that it is an “arm’s length” entity or autonomous body analogous to the university considered inMcKinney v University of Guelph, (SCC), [1990] 3 SCR 229 or the hospital considered in Stoffman v VancouverGeneral Hospital, (SCC), [1990] 3 SCR 483. Put into Paperny JA’s framework from Pridgen, AHS asserted that it wasa non-governmental body implementing a government objective.

As such, sometimes the Charter would apply, other times it would notdepending on the activity in question.

But for the relevant question – whether AHS should have a right to sue in defamation – AHSsubmitted the fact that it was non-governmental even though it was charged with implementing a government objective meant that itwould be inappropriate to deny it the right to sue in defamation. [55] The Supreme Court of Canada’s Charter s 32 jurisprudence makes it clear that determining whether an entity is a governmentactor by virtue of legislative control or a non-governmental body implementing government objectives requires an analysis of therelevant governing legislation.

The Supreme Court of Canada in Douglas/Kwantlen Faculty Assn. v Douglas College, (SCC), [1990] 3 SCR 570 reviewed the governing statute to assess whether Douglas College was a government actor. LaForest Jconcluded at 584: As its constituent Act makes clear, the college is a Crown agency established by the government to implement government policy. Though the government may choose to permit the college board to exercise a measure of discretion, the simple fact is that the board isnot only appointed and removable at pleasure by the government; the government may at all times by law direct its operation.

Brieflystated, it is simply part of the apparatus of government both in form and in fact [emphasis added]. [56] AHS is governed by the RHAA. The

preamble to the RHAA notes that AHS is “Alberta’s single health authority” deliveringhealth services to Albertans. The RHAA gives the Minister of Health and, by extension, the government, significant power and controlover AHS. The Minister has the power to establish or disestablish a health region (RHAA, s 2). The Minister of Health is empowered togive AHS direction concerning its priorities and the exercise of its powers (RHAA, s 8) and may establish “reporting requirements” andan “accountability framework” (RHAA, s 8.1).

The AHS annual budget must be approved by the Minister (RHAA, s 9.1). [57] The Minister has the authority to appoint the members of a health region (RHAA, s 3; Regional Health Authority MembershipRegulation, AR 164/2004). While the RHAA refers to “members” of AHS, they are typically referred to in common parlance as membersof the board of directors of AHS. The Minister may dismiss the members of AHS and replace the members with an administrator(RHAA, s 11). This is not a theoretical power.

The Minister dismissed the members of AHS and replaced them with an administrator in2013 and again in 2022. [58] The Minister enjoys broad power to do anything “necessary to promote and ensure the provision of health services in Alberta”(RHAA, s 16). The Lieutenant Governor in Council has the power to make regulations “respecting the management, functions, dutiesand jurisdiction of [AHS]...” (RHAA, s 23(1)). [59] The preceding review of the government’s statutory powers over AHS illustrates that AHS is a government actor. AHScannot sue in defamation. Accordingly, the claim by AHS against Mr.

Johnston is dismissed. Did Mr. Johnston Defame the Individual Plaintiffs? [60] Côté J, writing for the majority of the Supreme Court of Canada, restated the test for defamation in Bent v Platnick, 2020 SCC23 at para 92: 1. The words complained of were published, meaning that they were communicated to at least one person other than theplaintiff; 2. The words complained of referred to the plaintiff; and 3. The impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of areasonable person. [61] Mr.

Johnston’s statements were published and clearly referred to Ms. Nunn. The statements about Ms. Nunn weredefamatory. The statements that Ms. Nunn was an alcoholic, that she was misusing her authority as a public health inspector, and theimplication from Mr. Johnston’s repeated statement of his intention to arrest and prosecute her, that she was a criminal, would all tend tolower her reputation in the eyes of a reasonable person. [62] There is then the question of Mr. Johnston’s repeated calling Ms. Nunn a terrorist. By using the word terrorist, Mr.

Johnstonwas trying to convey the same message that he was conveying when he was saying that she was misusing her authority as a public healthinspector and when he was claiming that she was a criminal. But the use of the word terrorist can only have been intended to raise thestakes and suggest that she was a particularly heinous kind of criminal who had no regard for societal norms and human life. Mr.Johnston’s repeated labelling of Ms. Nunn as a terrorist would tend to lower her reputation in the eyes of a reasonable person. [63] Mr. Johnston broadcast his interview with Mr.

Pawlowski concerning the attendance of Ms. Nunn and other AHS employeesat Mr. Pawlowski’s Church. Mr. Pawlowski’s description of Ms. Nunn and other AHS employees as “villains, Nazis, Gestapo,Communists, Fascists” would tend to lower their reputations in the eyes of a reasonable person. The same goes for Mr. Johnston’sstatement in response to Mr. Pawlowski agreeing that the behaviour of Ms. Nunn and other AHS employees was “highly fascistic, highlycommunistic.” Likening Ms.

Nunn and other AHS employees to authoritarian ideologies and particularly to the Gestapo, the Nazi secretpolice who played a significant role in the Holocaust, demonized Ms. Nunn and other AHS employees.

[ 64 ] Plaintiff’s counsel could not point me to any similar statements about Mr. Brown. Mr. Johnston only mentioned Mr. Brown in the context of the Whistle Stop Café incident where Mr. Johnston was upset because he believed that his microphone was locked inside the restaurant. The separation of Mr. Johnston from his microphone appears to be something that happened and is not something that would tend to lower Mr. Brown’s reputation in the estimation of a reasonable person. [ 65 ] Mr. Johnston was a political candidate and a self-styled journalist.

Given these roles, he may have been able to plead defences to this action including the defence of fair comment. Mr. Johnston chose not to defend the action, so there is no requirement that the Court consider potential defences that Johnston may have had. With that said, I am doubtful that Mr. Johnston could have advanced a credible defence to defamation. Based on the evidence before me, it is obvious that Ms. Nunn faithfully carried out her duties as a public health inspector, is not an alcoholic, and is not a criminal or a terrorist or a fascist or a member of the Gestapo.

The inescapable conclusion is that if a defence of fair comment had been pleaded by Mr. Johnston, it would have failed. Tort of Invasion of Privacy [ 66 ] The Plaintiffs plead that Mr. Johnston committed the tort of invasion of privacy by “finding and broadcasting private images of the Plaintiff Nunn and her family.” They further plead that Mr. Johnston invaded the privacy of Ms. Nunn and other AHS employees by making public attempts to identify their residential addresses and threatening to attend at the private residences of Ms. Nunn and other AHS employees. [ 67 ] CBC quoted Mr.

Johnston as saying that he had obtained home addresses of AHS employees and that it was his intention to put the names and addresses of AHS employees into a Statement of Claim, commence an action, and then distribute the pleading. According to Mr. Johnston, using this method, “[i]t is legal to dox somebody and that’s exactly how we’re going to do it. So AHS, your comfortable little lives are going to be very uncomfortable so long as I am in Alberta which is going to be a very long time.” Despite his bravado, there is no evidence that Mr. Johnston disclosed Ms.

Nunn’s home address or the home address of any other AHS employee. [ 68 ] Professors Klar and Jeffries observe that “Canadian law has not generally yet recognized a tort action for invasion of privacy per se ”: Lewis N. Klar & Cameron S.G. Jeffries, Tort Law , 6 th ed, (Toronto: Thomson Reuters, 2017) at 99-100.

Justice Goss in Al- Ghamdi v Alberta , 2017 ABQB 684 observed at para 355 “ there is currently no common law cause of action for breach of privacy.” Justice Goss’s decision was affirmed with the Court of Appeal seeming to approve of her analysis of the tort of invasion of privacy: Al- Ghamdi v College and Association of Registered Nurses of Alberta , 2020 ABCA 81 at paras 23 & 27 . [ 69 ] The narrower tort of intrusion upon seclusion was recognized in Jones v Tsige , 2012 ONCA 32 .

Sharpe JA writing for the Court at para 70 adopted the formulation of the tort from the Restatement (Second) of Torts (2010): One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person. [ 70 ] Sharpe JA continued, explaining why the new tort would not give rise to a flood of claims. He said, A claim for intrusion upon seclusion will arise only for deliberate and significant invasions of personal privacy.

Claims from individuals who are sensitive or unusually concerned about their privacy are excluded: it is only intrusions into matters such as one’s financial or health records, sexual practises and orientation, employment, diary or private correspondence that, viewed objectively on the reasonable person standard, can be described as highly offensive. [ 71 ] Another privacy tort was recently recognized in Alberta. Justice Inglis found that the tort of public disclosure of private facts exists in E.S. v Shillington , 2021 ABQB 739 . She concluded at para 68 that, to make out the tort, a plaintiff must prove: (

a) the defendant publicized an aspect of the plaintiff’s private life; (

b) the plaintiff did not consent to the publication; (

c) the matter publicized or its publication would be highly offensive to a reasonable person in the position of the plaintiff; and, (

d) the publication was not of legitimate concern to the public. [ 72 ] The common thread that runs through the new privacy torts is that the information that was misused must have been private in the first place. In other words, there must have been a reasonable expectation of privacy with respect to the information. In the present case, Mr. Johnston copied photos from Ms. Nunn’s unlocked social media accounts. These accounts were unlocked so that they could be viewed by the public. To be clear, she did not consent to the use of her images by Mr.

Johnston, but her accounts were public which allowed anyone who wished to view their content. Indeed, the point of having a social media account unlocked is to allow its content to be viewed by strangers so that the account holder can meet new “friends” or acquire followers. [ 73 ] As will be discussed below, there are real problems with Mr. Johnston’s use of Ms. Nunn’s images and his statements about Ms. Nunn and her family. But we should not try to put a square peg in a round hole.

Use of images from a public social media account may be tortious in other respects, but it cannot ground a claim for a breach of privacy tort. Tort of Assault [ 74 ] The Plaintiffs plead that Mr. Johnston’s various threats amount to the tort of assault. In common usage and in the context of the Criminal Code , an assault involves unwanted physical contact. The tort of assault, however, is a threat of imminent physical harm.

If non-consensual physical contact occurs, that is the tort of battery. [ 75 ] To make out the tort of assault, a plaintiff must establish that “the defendant’s conduct ... caused a reasonable apprehension of imminent harm”: Klar & Jeffries at 50 [emphasis in original]. Justice Fisher in Mainland Sawmills Ltd. v.

USW Union Local – 1- 3567 , 2007 BCSC 1433 , citing Read v Coker (1853), 138 ER 1437, explained at para 102 that “a threat of violence which exhibits an intention to assault and a present ability to carry out the threat will constitute an assault.” At para 99 she quoted Justice Linden who gave the following examples of threats that were not imminent: “shaking one’s fist at someone who is out of reach, making a threat over the telephone, or reaching for someone who is standing safely behind a counter”: Allen M.

Linden, Canadian Tort Law , 8 th ed, (Markham: Lexis Butterworths, 2006) at 47. [ 76 ] There is some debate in recent case law as to whether imminence is still required to make out the tort of assault and, if so, how imminent the threat of harm must be: see, McLean v McLean , 2019 SKCA 15 at para 60 . Justice Morgan in Barker v Barker , 2020 ONSC 3746 found that a threat of future harm, in that case threatening to put patients in a maximum-security mental health facility into a form of solitary confinement, constituted the tort of assault: see paras 1194-1202.

The Ontario Court of Appeal overturned the trial decision finding that there was no assault: Barker v Barker , 2022 ONCA 567 . At para 171 the Court of Appeal confirmed that the traditional requirement of imminence remains a “critical component of the tort of assault.” [ 77 ] Mr. Johnston made threats against Ms. Nunn and unnamed AHS employees on his online talk show, in interviews with the press, and through other media. The threats were, for the most part, statements outlining his intention to prosecute and jail Ms. Nunn and others once he was Mayor of Calgary.

Leaving aside the fact that the Mayor of Calgary cannot direct the police nor does the Mayor of Calgary have the power to prosecute anyone for criminal offences, the threats were not imminent as the mayoral election was months after the statements. [ 78 ] Mr. Johnston was also quoted by CBC as threatening AHS workers generally. He said “I’m coming for you all. If SWAT won’t come, it’s simple, I’ll arm myself and I’ll come right to your doors.” This statement together with Mr. Johnston’s statements that if harm came to Ms.

Nunn and other AHS employees they would deserve it, were not threats sufficient to ground an action for assault. As disturbing as these threats are, I cannot conclude that the statements made by Mr. Johnston constituted an imminent threat to Ms. Nunn and other AHS employees in the sense required by the tort of assault. The tort of assault is, therefore, not made out on the facts. Tort of Harassment An Emerging Tort of Harassment? [ 79 ] The Plaintiffs pleaded that “the Defendant’s conduct and attacks constitute tortious harassment of the Plaintiffs.” The existence of a tort of harassment is controversial.

The Ontario Court of Appeal concluded in Merrifield v Canada (Attorney General), 2019 ONCA 205 at para 36 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.” The Court appeared to be concerned that recognizing a tort of harassment would be a significant change in the law and the facts of the case did not present an adequate basis for considering the existence of a tort of harassment.

The Court continued at para 53: “while we do not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts, we conclude that Merrifield has presented no compelling reason to recognize a new tort of harassment in this case.” The BC Courts have similarly not recognized the existence of a tort of harassment: Anderson v Double M Construction Ltd, 2021 BCSC 1473 at para 196 ; Skutnik v British Columbia (Attorney General) , 2021 BCSC 2408 at para 32 ; Ilic v British Columbia (Justice) , 2023 BCSC 167 at para 196 . [ 80 ] Despite the Ontario Court of Appeal’s reticence to embrace a tort of harassment in Merrifield , several decisions of the Ontario Superior Court that post-date Merrifield assert the existence of a tort of internet harassment: 40 Days for Life v Dietrich et al , 2022 ONSC 5588 ; Caplan v Atas , 2021 ONSC 670 ; 385277 Ontario Ltd v Gold , 2021 ONSC 4717 .

See also, M.S. v T.V. , 2022 MBKB 211 at paras 45-47 . I agree with Graesser J who observed in Ford v Jivraj, 2023 ABKB 92 at para 260 that cases finding the existence of the tort of internet harassment are “difficult to reconcile with Merrifield ....” [ 81 ] The idea that there is no general tort of harassment but there is a narrower tort of internet harassment makes no sense. If there is a tort of internet harassment but not a general tort of harassment, that means that the mode of harassment – using the internet – determines whether harassment is actionable.

While internet harassment is a problem, so too is old-fashioned low-tech harassment. [ 82 ] Justice Graesser in Ford at para 264 expressed his surprise at the Ontario Court of Appeal’s resistance to recognizing a tort of harassment in Merrifield and said at para 277 : “I am not bound by the Ontario Court of Appeal decision in Merrifield and see harassment as a logical extension to the existing tort of intentional infliction of mental suffering.” I agree with Graesser J; Alberta courts are not bound by the Ontario Court of Appeal nor should Merrifield be followed. As I will explain below, I

part company with Graesser J on the question of whether the tort of harassment is an extension of the tort of intentional infliction of mental suffering. The Law of Recognizing New Torts [ 83 ] The Supreme Court of Canada set out the approach for recognizing new torts in Nevsun Resources Ltd v Araya , 2020 SCC 5 . Justice Abella, writing for the majority, at para 118 explained that “[d]evelopment of the common law occurs where such developments are necessary to clarify a legal principle, to resolve an inconsistency, or to keep the law aligned with the evolution of society” [citations omitted].

She went on to quote Lord Scarman in Sidaway v Board of Governors of the Bethlem Royal Hospital , [1985] 1 AC 871 , at 884 (HL) with approval: Unless statute has intervened to restrict the range of judge-made law, the common law enables the judges, when faced with a situation where a right recognised by law is not adequately protected, either to extend existing principles to cover the situation or to apply an

existing remedy to redress the injustice. There is here no novelty: but merely the application of the principle ubi jus ibi remedium [for every wrong, the law provides a remedy]. [ 84 ] A key question in recognizing a new tort, according to Abella J, is whether the harm in question cannot be adequately addressed by recognized torts: Nevsun at para 123. Brown and Rowe JJ, dissenting in Nevsun took a more restrictive view at para 237 stating that:

(1) The courts will not recognize a new tort where there are adequate alternative remedies; (2) the courts will not recognize a new tort that does not reflect and address a wrong visited by one person upon another; and (3) the courts will not recognize a new tort where the change wrought upon the legal system would be indeterminate or substantial.

Put another way, for a proposed nominate tort to be recognized by the courts, at a minimum it must reflect a wrong, be necessary to address that wrong, and be an appropriate subject of judicial consideration. [ 85 ] As I proceed to consider whether the tort of harassment exists, I am mindful that the existing constellation of torts is a product of the accumulation of judicial decisions over many centuries. For most of this time, many harms experienced by women and members of other marginalized groups were not recognized.

Harassment is something that can happen to anyone, but disproportionately affects women and members of other marginalized groups. As one scholar put it when writing about the tort of harassment, “the common law is, by tradition, insensitive to the particular wrongs suffered by women...”: Joanne Conaghan, “Harassment and the Law of Torts: Khorasandjian v. Bush ” (1993) 1 Feminist Legal Studies 189 at 196. The historical failure of courts to recognize a tort of harassment is not evidence that such a tort should not exist. Justifying Recognition of a Tort of Harassment 1.

Harassment is a Crime [ 86 ] Criminal Code s 264 makes harassment a crime. Indeed, Mr. Johnston pleaded guilty to criminal harassment in respect of the very same statements that are the subject of this civil proceeding. Criminal Code s 264 provides as follows:

(1) No person shall, without lawful authority and knowing that another person is harassed or recklessly as to whether the other person is harassed, engage in conduct referred to in subsection (2) that causes that other person reasonably, in all the circumstances, to fear for their safety or the safety of anyone known to them.

(2) The conduct mentioned in subsection (1) consists of (

a) repeatedly following from place to place the other person or anyone known to them; (

b) repeatedly communicating with, either directly or indirectly, the other person or anyone known to them; (

c) besetting or watching the dwelling-house, or place where the other person, or anyone known to them, resides, works, carries on business or happens to be; or (

d) engaging in threatening conduct directed at the other person or any member of their family. [ 87 ] The existence of the criminal offence of harassment indicates that harassment is wrongful. Not every criminal offence has an analogue in tort law, but the fact that harassment is a crime suggests that it is reasonable to ask whether it is also something for which a civil remedy should exist. 2. The Legislature May Create a Statutory Cause of Action [ 88 ] A common rejoinder to the proposed creation of a new tort of harassment is that the Legislature can create a statutory cause of action.

In some places, that has happened. For example, in the UK there is the Protection from Harassment Act 1997 , (c 40). The Protection from Harassment Act 1997 defines harassment in s 1, creates a criminal offence in s 2, and provides for a civil remedy in s 3.

Such a coordinated approach is not possible in Canada because the Constitution Act, 1867 allocates responsibility for criminal law to the federal Parliament and responsibility for property and civil rights to the provincial Legislatures. [ 89 ] The adoption of the Protection from Harassment Act 1997 foreclosed the development of a common law tort of harassment that some thought was “long overdue” and imminent after Khorasandjian v Bush , [1993] 3 WLR 476 (CA) : see Jane Stapleton, “In Restraint of Tort” in Peter Birks, ed, The Frontiers of Liability (Oxford: Clarendon Press, 1994) 83 at 101. [ 90 ] The Alberta Legislature could create a stand-alone statutory right of action for harassment, but it has not done so.

Judicial development of a tort of harassment does not prevent the Legislature from occupying the field as was done in the UK in 1997. The development of the common law, which is judge-made law, has operated in tandem with the development of statute law in Westminster democracies for hundreds of years. The recognition of a new tort of harassment does not usurp the democratic will of the Legislature. Indeed, the Legislature has the power to modify common law torts as it has done in the Defamation Act , RSA 2000 c D-7 , or pass a law specifying that harassment is not actionable. 3.

ABKB Regularly Grants Restraining Orders Preventing Harassment [ 91 ] Every day in this Court there is a sitting of urgent chambers in Calgary and Edmonton. Almost without exception, there are restraining order applications on the docket. These restraining order applications often seek to restrain one individual from harassing another individual. Sometimes the harassment complained of is conducted online; other times it involves physical acts such as stalking. The harassment may have its origins in an intimate relationship, a business or workplace relationship, an obsession with a stranger, or

myriad other human encounters. Too often, harassment has a gendered, sexual, or racial component. Harassment creates an oppressiveatmosphere that significantly affects the ability of the target to live her life. [92] The Court of King’s Bench of Alberta regularly grants restraining orders to prevent harassment and the Court of Appeal hasupheld such orders: see, for example, Waymarker Management (Silver Creek) Inc v Tibu, 2016 ABCA 118. The volume of theseorders is not evident based on a search of the case law because these orders are usually granted on an urgent basis without writtenreasons.

In other words, the reported restraining order cases represent only the tip of the iceberg. [93] Hughes J, as she then was, in R.P. v R.V., 2012 ABQB 353 outlined at para 24 what has become the standard test for grantinga restraining order: In my opinion, within the context of a no-contact restraining order these factors lead to a more specific standard: has the applicantestablished that the respondent poses a legitimate risk of harm to the applicant, a person under the applicant’s care or the applicant’sproperty as a result of the respondent’s harassing, intimidating, molesting, threatening or violent behaviour? [emphasis added]. [94] The doctrinal basis on which orders restraining harassment are granted is unclear.

Justice Lee in A.T.C. v N.S., 2014 ABQB132 at para 23 wrote of the “legal right, i.e., the Applicant’s freedom to remain unfettered by harassing, intimidating, threatening, orviolent conduct....” Justice Veit in Boychuk v Boychuk, 2017 ABQB 428 concluded at paras 38-39 that individuals have a right to befree from “vexatious conduct” by another and that this was a basis for granting restraining orders.

In reaching this conclusion, she hadregard to the Criminal Code harassment offence, emerging privacy torts, and noted that the Alberta Supreme Court Appellate Divisionrecognized that harassment may constitute the tort of private nuisance in some circumstances: Motherwell v Motherwell, 1976AltaSCAD 155. Justice Veit, however, did not settle on a single doctrinal basis for granting the restraining order remedy forharassment. Similarly, Justice D.B.

Nixon, without any reference to any specific legal or equitable right, in Muslim Counsel of Calgaryv Mourra, 2018 ABQB 118 explained at para 77: this Court will take steps to deter inappropriate conduct by issuing a permanent injunction; even where there is no reasonable fear ofviolence (measured objectively). Where the evidence and context justifies the action, this Court will exercise its inherent jurisdiction toprotect a person from harassment.

That harassment need not rise to the level of creating a fear for one’s safety [Emphasis added]. [95] The power to grant restraining orders, which are a form of injunction, comes from the Court’s inherent jurisdiction which isrecognized in the Judicature Act, RSA 2000, c J-2, s

Section 8 provides that the Court “has the power to grant ... all remedieswhatsoever to which any of the parties to the proceeding may appear to be entitled in respect of any and every legal or equitable claim...”[emphasis added]. The Newfoundland Court of Appeal explained in Bowaters Newfoundland Limited v Pelley Enterprises Limited(1977), 12 Nfld & PEIR 251 (Nfld CA) at para 22: The granting of an injunction to restrain a person from doing a particular thing is

an act dependent on the discretion of the Court and inexercising that discretion the Court will consider, among other things, whether the doing of the thing sought to be restrained mustproduce an injury to the person seeking the injunction. There must be a legal or equitable right sought to be protected and if an injunctionis granted it should be no more than adequate to protect such right.

It should not be so broad as to extend the rights of the party seekingthe injunction. [Emphasis added.] [96] McLachlin CJC and Lebel J, writing for the Court, in R.W.D.S.U., Local 558 v Pepsi-Cola Canada Beverages (West) Ltd.,2002 SCC 8 at paras 108-113 upheld the Court of Appeal decision that held “that picketing is not subject to injunctive relief unlessaccompanied by the commission of a tort actionable at the instance of the primary company (i.e. Pepsi-Cola)” (at para 109).

Morerecently, Brown J, writing for the Court in R. v Canadian Broadcasting Corp., 2018 SCC 5 at para 24, quoting Amchem Products Inc. vBritish Columbia (Workers’ Compensation Board), (SCC), [1993] 1 SCR 897 at p. 930 observed that “[a]n injunctionis generally ‘a remedy ancillary to a cause of action.’” That begs the question, what is the cause of action that restraining orders grantedby Alberta courts to prevent harassment are ancillary to? [97] Sharpe JA, writing extra-judicially in his text Injunctions and Specific Performance (Toronto: Thomson Reuters, online) at§1:32.10 explained that there is some uncertainty in the case law as to whether an injunction can only protect legal and equitable rights orwhether there is an unconstrained power to grant injunctions to do right.

After reviewing the relevant case law, Sharpe JA concludedthat the best view was that “the jurisdiction of the courts to grant injunctions is limited only by the principle that the suit in whichinjunctive relief is claimed must raise a justiciable issue between the parties” (§1:32.10). He then concluded in terms that are relevant tothe emergence of the practice of granting restraining orders to prevent harassment in Alberta: ...it is often difficult to make a strict distinction between recognizing new rights and affording new remedial solutions to existing rights.

Neither common law nor equity developed by first defining rights in isolation. Both systems tended to put the remedial cart before thedoctrinal horse and to develop the law by making remedies available where judged appropriate in response to specific problems(§1:32.10). [98] The fact that this Court regularly grants restraining orders to address harassment indicates that harassment is a justiciableissue. A recognition that the wrong that is being restrained in these cases is tortious harassment is an incremental change in the law.

The recognition of the tort of harassment, in turn, allows damages to be awarded in circumstances where the Court now can only issuerestraining orders. Arming the Court to redress the problem of harassment by adding the power to award damages in appropriate cases islong overdue. 4. Tort of Harassment Fills a Gap in the Law [99] Existing torts do not address the harm caused by harassment. Some of those torts have been alleged in the present case andtheir elements have been reviewed in earlier sections of these Reasons.

Defamation and assault get at some kinds of harassing behaviourbut are inadequate because they are limited to false statements causing reputational harm in the case of defamation and imminent threatsof physical harm in the case of assault. The new privacy torts address harassment only if there is a reasonable expectation of privacy –

which is absent in the present case. The tort of private nuisance was used to address harassment by way of repeated telephone calls in Motherwell , but it is an inadequate basis for liability for harassment in many circumstances because it requires a connection to property.

The tort of intimidation is of limited use to address harassment because it requires submission to a threat (Klar & Jeffries at 835) whereas in many cases with harassment there will either be no threat or no acquiescence. [ 100 ] Graesser J in Ford conceived of the tort of harassment as an extension of the tort of intentional infliction of mental suffering. A similar approach is discussed in Dan Priel, “‘That is not how the Common Law Works’: Paths to Tort Liability for Harassment” (2021) 52 Ottawa Law Review 87 at 115-120.

The elements of intentional infliction of mental suffering are: (1) flagrant or outrageous conduct; (2) calculated to produce harm; and (3) resulting in a visible and provable illness: Young v Borzoni , 2007 BCCA 16 at para 24 ; Universe v Fraser Health Authority , 2019 BCCA 234 at para 23 ; McIlvenna v 1887401 Ontario Ltd. , 2015 ONCA 830 at para 29 . Intentional infliction of mental suffering requires both intention, recklessness is not enough ( Piresferreira v Ayotte , 2010 ONCA 384 at para 79 ), and a visible or provable illness.

Harassers often act with reckless disregard as to the consequences of their actions as opposed to having the intention required to satisfy the requirements of the tort of intentional infliction of mental suffering. And victims of harassment will often engage in self-preservation avoidance behaviour – quitting a job, changing residence, buying a security system, disengaging with social media, etc – so that no visible or provable illness arises.

The harms and costs associated with harassment that fall short of a visible or provable illness are not recoverable pursuant to the tort of intentional infliction of mental suffering. 5. The Elements of the Tort of Harassment [ 101 ] A problem with establishing a tort of harassment is defining what constitutes harassment. Difficulty with defining a concept does not prevent it from being actionable. As detailed earlier in these Reasons, this Court regularly deals with the concept of harassment in the context of restraining orders.

Harassment is a concept like negligence that takes its meaning from the context in which it occurs. As with negligence, the law cannot provide a bright line between what is harassing and is not harassing behaviour – it must be determined on a case-by-case basis. As the body of caselaw grows, it will provide the guidance and certainty required by the rule of law. [ 102 ] The articulations of the tort of harassment found in existing case law replicate many of the features of the torts reviewed earlier in these Reasons and, accordingly, do not address the problem of harassment.

Justice Goss in Al-Ghamdi at para 137 summarized the elements of the tort of harassment that she gleaned from the caselaw as follows: (

a) outrageous conduct by the defendant; (

b) the defendant’s intention of causing or reckless disregard of causing emotional distress; (

c) the plaintiff suffered severe or extreme emotional distress; and (

d) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. [ 103 ] The Court of Appeal approved of Justice Goss’ statement of the law with respect to a long list of causes of action, including harassment, but the Court of Appeal did not directly engage with the question of the existence of the tort of harassment or the elements identified by Justice Goss: Al-Ghamdi (CA) at paras 23 & 27. [ 104 ] The main problem with the definition of the tort of harassment in Al-Ghamdi is that it is predicated on the plaintiff having to establish that she suffered severe or extreme emotional distress.

As with the tort of intentional infliction of mental suffering, this fails to address individuals who suffer losses or harm from harassment other than extreme emotional distress. Someone who is harassed – even if the harassment is severe – may not experience extreme emotional distress but may suffer other losses. [ 105 ] The tort of internet harassment in Caplan , like the tort of harassment described by Justice Goss, captures reckless as well as intentional behaviour.

The innovation found in Justice Corbett’s definition of the tort of internet harassment in Caplan is that it includes communications that impugn the dignity of the target. This is an important addition as it makes harassment based on race, gender, sexuality, and analogous grounds actionable.

Justice Corbett defined the tort of internet harassment in the following terms at para 171: the tort of harassment in internet communications: where 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, with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm. [ 106 ] My view, based on the offence of criminal harassment, is that the essence of harassment is repeated or persistent behaviour.

A single encounter where threats and insults are made or where other offensive behaviour takes place may be actionable on other grounds but it is not harassment. Harassment occurs when the behaviour is recurring and creates an oppressive atmosphere. Any definition of harassment must specify that the behaviour is repeated. [ 107 ] Based on the foregoing, I define the tort of harassment as follows.

A defendant has committed the tort of harassment where he has: (1) engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through or 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. [ 108 ] Recognizing the tort of harassment in the terms described above provides a doctrinal foundation for and structure to what Alberta courts have already been doing for many years in the context of restraining orders.

Taking this step does not create indeterminate

liability nor does it open floodgates; to the contrary, it defines the tort of harassment in a measured way that will guide courts in the future. 6. Did Mr. Johnston Harass Ms. Nunn? [ 109 ] The evidence reviewed earlier in these Reasons shows that Mr. Johnston repeatedly spoke about Ms. Nunn in segments in his online talk show. He used pejoratives like “terrorist” and “fascist” to describe Ms. Nunn. He mocked Ms Nunn and her family while showing pictures of them harvested from her social media accounts. And, as discussed earlier in these Reasons, Mr.

Johnston’s statements could reasonably be interpreted as inciting his followers to violence against Ms. Nunn and her family. This behaviour was harassing and Mr. Johnston knew or ought to have known it was unwelcome. Mr. Johnston’s harassing behaviour would cause a reasonable person to fear for her safety or the safety of her loved ones and Ms. Nunn deposed that she did, in fact, fear for her safety and the safety of her children. She explained that she feared to leave her own home. She was advised by the police that her children should not take the bus while the harassment was continuing. Among other things, Mr.

Johnston’s harassing behaviour caused Ms. Nunn to install a home security system. I am satisfied that on the evidence before me the tort of harassment has been made out. Remedies General Damages [ 110 ] General damages in defamation cases are presumed without proof of actual injury: Defamation Act , s 2(2); Hill at para 164 . Cory J, writing for the majority in Hill , at para 182 adopted the factors for assessing general damages set out in Philip Lewis, Gatley on Libel and Slander, (8 th ed) (London: Sweet & Maxwell, 1981) at 592-593 as follows: (

a) The plaintiff’s position and standing; (

b) The nature and seriousness of the defamatory statements; (

c) The mode and extent of publication; (

d) The absence or refusal of any retraction or apology; and (

e) The whole conduct and motive of the defendant from publication through judgment. [ 111 ] Ms. Nunn was a public health inspector employed by AHS. In normal times, a public health inspector enjoys respect and anonymity. Mr. Johnston’s attacks on Ms. Nunn’s professionalism and his labelling of her as a criminal and a terrorist brought her unwelcome attention. As Côté J held in Bent at para 97 , “allegations of professional misconduct must be taken especially seriously.” Mr.

Johnston’s dissemination of his comments by way of an online talk show and in interviews with reporters for mainstream media outlets was pernicious and intended to reach a wide audience. While there is no evidence of scale of Mr. Johnston’s viewership, it was potentially large. Mr. Johnston did not apologize to Ms Nunn and, indeed, he maintained his position even at the hearing of this matter that his statements were justified. [ 112 ] The assessment of damages for defamation is an inexact process: Best v Weatherall , 2010 BCCA 202 at para 46 .

The Plaintiffs provided case authorities as examples of general damages awarded for defamation. These cases are of limited assistance in assessing general damages for Ms Nunn because many of them involved corporate plaintiffs, which is understandable given that AHS was a plaintiff, and others involved quantifiable losses arising from lost business opportunities. [ 113 ] In my view, the best analogy to the present circumstances is that in Hill . Mr. Hill was a Crown prosecutor who was defamed.

Though a Crown prosecutor and a public health inspector occupy different roles, they are both government employees who must sometimes in the course of their duties do unpopular things. Ms. Nunn, like Mr. Hill, was attacked for her supposed lack of professionalism and alleged criminal behaviour. If anything, the attack on Ms. Nunn was more aggressive than that on Mr. Hill because it went further alleging that Ms Nunn was a terrorist and likened her to a fascist among other things. Neither Ms. Nunn nor Mr.

Hill could lose business because they were government employees and, as such, the damage to their reputation was not reflected in the loss of business. Côté J in Bent at para 97 indicated that concern for reputation is no higher for lawyers than any other professional. Public health inspectors are not professionals as that term is often used, but I see little distinction between Mr. Hill fulfilling his duty as a Crown prosecutor and Ms.

Nunn fulfilling her duty as a public health inspector. [ 114 ] Given that the CMOH’s public health orders concerning the COVID-19 pandemic were an issue of significant public interest and debate in 2021, Mr. Johnston’s attacks on Ms. Nunn were widely disseminated through conventional media. Mr. Johnston’s role as a candidate for mayor only served to amplify his message and focus public attention on his attacks on Ms. Nunn. [ 115 ] The Supreme Court of Canada upheld an award of general damages for Mr. Hill in the amount of $300,000.

Using the Bank of Canada’s online inflation calculator, which uses the Consumer Price Index, $300,000 in 1995 is equal to $533,000 (rounded) in 2023. I am mindful, however, that awards of general damages in defamation proceedings are not typically as significant: H. Young, “The Canadian Defamation Action: An Empirical Study” (2017) 95 Can Bar Rev 592 at 616. Accordingly, I award Ms. Nunn general damages of $300,000 to compensate her for injury to her reputation which is much less than the present value of the Hill damage award. [ 116 ] I further award Ms. Nunn $100,000 in general damages for harassment. Ms.

Nunn did not adduce any evidence of illness. However, Ms. Nunn gave evidence that Mr. Johnston’s harassing conduct caused her to fear for her safety, the safety of her children, and that the harassment affected the way that she and her family lived their lives. I am satisfied that Ms. Nunn’s emotional distress and the negative impact on her quality of life was serious and should be recognized and compensated through a significant award of damages.

Special Damages [ 117 ] The only compensatory damages sought by Ms Nunn were in respect of the installation of a home security system. These are not reputational damages and, accordingly, are not recoverable under the rubric of defamation. These damages are, however, recoverable pursuant to the tort of harassment. Ms Nunn, however, did not adduce evidence of the cost of the home security system. If Ms. Nunn wishes to submit evidence showing the cost of her home security system, she may do so within 30 days of these Reasons.

Aggravated Damages [ 118 ] Cory J in Hill explained at para 189 that “[aggravated] damages take into account additional harm caused to the plaintiff’s feelings by the defendant’s outrageous and malicious conduct.... They represent the expression of natural indignation of right-thinking people arising from the malicious conduct of the defendant.” [ 119 ] In the present case, it is evident from the content of the statements made by Mr. Johnston and the tone in which the statements were made that he acted with malice. But it is not necessary to infer Mr.

Johnston’s state of mind from his words because he said quite clearly “I’m going to come at you with full vitriol and full malice.” [ 120 ] Unlike Hill , Mr. Johnston did not defend the action. Accordingly, there was no trial and Ms. Nunn was not subjected to the type of cross-examination experienced by Mr. Hill. Mr. Johnston, however, refused to apologize and maintained that his statements were justified even during this application. Cory J in Hill upheld an aggravated damages award of $500,000. The present case does not, in my view, warrant as significant an award of aggravated damages.

I am satisfied that an award of $250,000 sufficiently addresses the additional harm caused to Ms. Nunn by Mr. Johnston’s malicious conduct. Punitive Damages [ 121 ] A Court may award punitive damages in circumstances where “the defendant’s misconduct is so malicious and high-handed that it offends the court’s sense of decency”: Hill at para 196 .

Cory J, however, cautioned that “punitive damages should only be awarded in those circumstances where the combined award of general and aggravated damages would be insufficient to achieve the goal of punishment and deterrence”: Hill at para 196 . [ 122 ] The present case is one where an award of punitive damages would serve no purpose. Mr. Johnston appears to have no financial resources and is already subject to a multi-million dollar defamation damages award in Ontario that he has not paid: Paramount v Kevin J. Johnston , 2019 ONSC 2910 . The $650,000 in general and aggravated damages awarded to Ms.

Nunn in the present case are unlikely to be paid. I am also concerned that a pu

[…]