2023 April 12

Alberta Health Services v. Johnston,  2023 ABKB 209

The Alberta Court of Queens Bench awarded $300,000 general damages for defamation, plus $100,000 general damages for harassment, and a further $250,000 in aggravated damages to the individual plaintiff Nunn against the defendant Johnston.  The Court described the defendant as “a self-appointed spokesperson for Albertans who opposed public health measures intended to mitigate the COVID-19 pandemic” who at the relevant time was “the host of an online talk show, and a prodigious creator of social media” and someone who “enjoyed a moment of notoriety as candidate for mayor of Calgary in 2021”  The “untrue and unfair” allegations of misconduct by the defendant  were disseminated by way of an online talk show and in interviews with reporters for mainstream media outlets in a “pernicious” manner and intended to reach a wide audience.  The Court found that the defendant’s harassing conduct caused the plaintiff 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.  In granting a permanent injunction, the Court stated: “While I have awarded damages for these causes of action, Mr. Johnston is unrepentant, and I have no confidence that the damages award will function as any sort of disincentive to him continuing to defame and harass” the individual plaintiff.

Noting that the defendant Johnston had “pleaded guilty to criminal harassment in respect of the very same statements that are the subject of this civil proceeding”, the Court held that the time had come for Alberta to recognize a common law 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 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 reasonably cause emotional distress; and (4) caused harm.”

The claims for defamation damages by the plaintiff Alberta Health Services (“AHS”) against the defendant Johnston were dismissed on the basis that an unelected government body does not have the capacity to maintain an action in defamation. “The reason for this is that a significant part of government is conducted through administrative bureaucracy or Crown corporations.   To allow what are, in essence, organs of government to sue in defamation would be to allow government to do indirectly what it cannot do directly.  Put simply, the fact that government may operate through different ministries, agencies, and corporations does not cloak those bodies with the power to sue in defamation.”  On the other hand, the Court ruled that AHS was entitled to a permanent injunction, even though it had no cause of action for defamation, in order to facilitate the performance of public legal duties.  “The injunction sought by AHS can be understood to be protecting several different interests: (a) AHS’s ability to fulfill its legal duties to provide public health services …; (b) the right of AHS employees to work free from harassment; and (c) the right of patients and others to safely access AHS facilities”.  The injunction granted to AHS directed the defendant to remain 50 metres or more away from the entrances to all hospitals and other AHS facilities frequented by patients seeking medical care and 25 metres or more away from the entrances to all other AHS facilities.