Understanding the Tort of Harassment in Alberta: What You Need to Know
Without prejudice to pursuing criminal harassment, the ‘tort of harassment’ is an evolving civil claim that addresses the growing issue of harmful conduct causing emotional distress or harm to individuals through repeated and oppressive behavior.
While the existence of this tort remains controversial in some legal jurisdictions, there is a growing body of case law and legal discourse that suggests its potential as a recognized legal remedy for harassment, particularly in the context of modern challenges such as cyberbullying, online harassment, and other persistent forms of distressing behavior.
While harassment is generally addressed through employment and human rights laws, Alberta is the first jurisdiction in Canada to officially recognize the tort of harassment. This tort is an important tool for victims of harassment seeking compensation for the harm they have endured.
What is the Tort of Harassment in Alberta?
In Alberta the tort of harassment is a relatively new legal concept addressing a civil wrong where an individual intentionally or recklessly engages in harassing conduct that causes harm to another person. This form of harassment is distinct from criminal harassment and is primarily concerned with the harm caused to an individual through continuous, unwanted behavior.
In Alberta, the tort of harassment was recognized by the King’s Bench of Alberta in 2023, where the Court found that an individual could claim damages for harm suffered as a result of harassment, even if the harassing behavior did not meet the criminal standard for harassment under the Criminal Code.
Criminal Code
The Criminal Code of Canada recognizes the inherent wrongful nature of harassment through Section 264, which criminalizes repeated conduct that causes a person to fear for their safety. This provision captures a broad range of harassing behaviors, such as stalking, unwanted communications, and threats, and provides robust penalties for offenders, including imprisonment for up to 10 years. The criminal law serves as a powerful deterrent, and the remedies offered, including restraining orders, can provide victims with effective protection.
While the Criminal Code addresses harassment, it has notable limitations that leave victims without adequate protection in some cases. In many instances, victims of harassment are left without timely legal recourse. Establishing a tort of harassment in Alberta fills a gap in legal protection, as civil remedies, such as compensation for emotional distress or injunctive relief, are readily available, and allows victims to seek redress through civil courts for a broader range of harassing behaviors, ultimately ensuring more accessible and effective protection from harassment.
Defining the Tort Of Harassment
Defining the elements of the tort of harassment is one of the significant challenges in its development. While existing case law has attempted to identify common features, such as outrageous conduct, intentional or reckless disregard for emotional distress, and actual causation, these elements remain contentious.
The Courtarticulated the elements of the tort of harassment as follows, stating A defendant has committed the tort of harassment where he has:
- Engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through other means;
- That he knew or ought to have known was unwelcome;
- 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
- Caused harm.
The court also took judicial notice that harassment is something that can happen to anyone, but disproportionately affects women and members of other marginalized groups.
Harms of the Internet
The need for the tort of harassment has become increasingly important, particularly in the context of internet harms. As online platforms grow, individuals are increasingly vulnerable to various forms of harassment, including cyberbullying, doxing, and online stalking. Traditional legal remedies often struggle to address the unique challenges posed by digital harassment, such as anonymity, widespread dissemination of harmful content, and the potential for lasting emotional and reputational damage. A specific tort of harassment would provide victims with a clear legal avenue to seek redress, holding perpetrators accountable for their actions and offering an essential deterrent to prevent further online abuse.
It is also worth noting that there is significant overlap between the tort of defamation and the tort of harassment, particularly in the online context. Both torts can involve harmful statements or conduct directed at an individual, often causing damage to their reputation or emotional well-being. In cases of online harassment, defamatory statements can be part of a broader pattern of conduct intended to demean, intimidate, or distress the victim. Harassing behavior online frequently includes spreading false or damaging information, which can lead to reputational harm similar to defamation. As a result, the legal distinction between these two torts can sometimes blur, especially when the defamatory statements are part of a sustained campaign of harassment or when the online environment amplifies the harm caused by the defendant’s actions.
Conclusion
The tort of harassment is an emerging legal concept that holds the potential to address a significant gap in the law. As courts continue to grapple with the complexities of harassment in both traditional and digital contexts, the recognition of a tort of harassment could provide an essential tool for victims seeking justice.
Navigating harassment claims can be a challenging and emotional process, whether you’re the victim or the person accused. At Osuji & Smith, our experienced personal injury lawyers are here to help you evaluate your case and provide guidance on the next steps. Given the time-sensitive nature of harassment claims, it’s crucial to take action without delay. Contact us today for professional assistance.
