Canadian Lawyer

August 2023

The most widely read magazine for Canadian lawyers

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40 A new tort of harassment could affect workplace culture and become a regular part of lawyers' toolkits, writes Zena Olijnyk Heading off harassment in the workplace AC R O S S CA N A DA , l a b o u r a n d employment lawyers have turned their eyes toward an Alberta Court of King's Bench decision that had nothing to do with a dispute between an employer and an employee. The reason? It looks like Alberta Health Services v. Johnston, 2023 may have provided a new tool in the toolbox for an employee to claim damages when fired or quitting because of a toxic workplace environment – the tort of harassment. The case involved two public health inspectors who enforced provincial orders during the COVID-19 pandemic. Preacher Kevin Johnston, a self-appointed public- health critic, Calgary mayoral candidate, and host of an online talk show, bombarded one of the inspectors with derogatory comments, including the term "terrorist." Johnston also said he intended to "make this woman's life miserable" and hinted at potential violent actions. He also shared pictures of the woman and her family obtained from social media accounts. Following a trial, Justice Colin Feasby deemed that the facts warranted a separate tort of harassment, adding a $100,000 award for harassment on top of $300,000 for defamation and $250,000 in aggravated damages. While it is a decision that does not bind courts in other provinces, labour and employment lawyers quickly gleaned that a separate tort of harassment, as outlined in LEGAL REPORT EMPLOYMENT the decision, could be used by plaintiffs who were fired or felt compelled to quit because of an untenable work environment. Toronto-based employment lawyer Howard Levitt of Levitt Sheikh says, "In the past, evidence of harassment usually opened the door for a claim of negligence or constructive dismissal in the workplace. However, the new separate tort of harassment can be used on top of those claims, providing the potential for even higher damage awards." Adam Rempel, a lawyer with Osler Hoskin & Harcourt LLP based in Calgary, says, "The judge, in this case, found that there was a gap in tort law that needed to be addressed." The idea of a harassment tort has often come up "The judge, in this case, found that there was a gap in tort law that needed to be addressed" Adam Rempel, Osler Hoskin & Harcourt

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