Canadian Lawyer

August 2023

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Page 42 of 51 41 in litigation, "but nothing solid until this." Sometimes, Rempel says, "it just takes the right case to come along to set the stage for a new tort. It will be quite interesting to see how Alberta courts and those in other provinces respond to this decision over the next several years." In creating the new tort, Justice Feasby wrote: "Existing torts do not address the harm caused by harassment." Defamation and assault get at some kinds of harassing behaviour, he noted, "but are inadequate because they are limited to false statements causing reputational harm, in the case THE TORT OF HARASSMENT'S FOUR-PART TEST • Were there repeated communications, threats, insults, stalking, or other harassing behaviour in person or through other means? • Did the accused harasser know or ought to have known the behaviour was unwelcome? • Did the actions impugn the dignity of the plaintiff, or cause a reasonable person to fear for the safety of the plaintiff and their loved ones, or could cause emotional distress? • Did the behaviour cause harm? "The facts, in this case, are pretty unique, so the judge felt the need to adequately compensate for the harm the plaintiff suffered" Arooj Shah, MLT Aikins of defamation, and imminent threats of physical harm in the case of assault." New privacy torts may address harassment only if there is a reasonable expectation of privacy – which is absent in Johnston, he added – and the tort of intimidation "is of limited use to address harassment because it requires submission to a threat, whereas in many cases with harassment, there will either be no threat or no acquiescence." Walter Pavlic, a partner with MLT Aikins LLP in Edmonton, says, "The judge, in this case, did an excellent job of analyzing the existing torts that were out there and gave a good rationale for this additional tort." Justice Feasby reviewed the options and found none were adequate for the situation. "Every jurisdiction has its peculiarities, Source: Justice Colin Feasby in Alberta Health Services v. Johnston, 2023

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