New Employer Liability Risk for Harassment: Insights for HR Professionals
In the complex landscape of workplace relations, HR professionals play a crucial role in maintaining a safe and respectful environment. The Alberta Health Services v Johnston, 2023 ABKB 209 (CanLII) case provides valuable insights into understanding the legal frameworks that govern workplace conduct, especially concerning defamation and a new form of civil wrong that can be litigated in court.
Understanding the Case: Implications for HR Practices
The defendant’s actions, while a candidate for mayor of Calgary in 2021, were characterised by defamatory conduct against Alberta Health Services (AHS) and its public health inspector. The defendant made numerous statements on various online platforms, some of which implied financial harm against the plaintiffs, and others where “…he recognized that violence by those allied with him was a possibility and, at the same time, he feigned a disavowal of violence.” AHS supra, at para. 18. He also made negative references to public health inspector personally and to her family, accompanied by pictures he harvested from her unlocked social media accounts.
The plaintiffs sought a significant award of damages and a permanent injunction to prohibit the defendant from issuing more defamatory statements. Additionally, they argued that the defendant’s intimidating and offensive behaviour constitutes “tortious harassment,” combined with an invasion of privacy, and assault. AHS supra, paras. 1 and 2.
The case presents two questions for which there was legal uncertainty:
Can a public entity like AHS pursue a defamation claim?
Does Alberta recognize a tort of harassment?
In its entirety, the case highlights a significant risk area for HR professionals in regard to defamation and harassment claims, notably the legal scrutiny of the defendant’s behaviour towards an employer’s worker, the public health inspector.
HR professionals need to establish clear guidelines on employee behaviour, both online and offline. They also need to implement effective mechanisms for addressing complaints of harassment and defamation. This is to protect employees and the organization as a whole from the legal and reputational risks associated with defamatory behaviour.
Legal Insights: Defamation and the Recognition of Harassment
Defamation
The court found a public entity like AHS cannot pursue a defamation on account it was a government actor however, it opened the door for such a claim by its worker: AHS supra, at para. 59. The court followed the test for assessing whether defamation occurred outlined in Bent v Platnick, 2020 SCC 23 at para. 92:
- The words complained of were published, meaning that they were communicated to at least one person other than the plaintiff;
- The words complained of referred to the plaintiff; and
- The impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person.
The court in AHS found that the defendant’s statements, which were made public, were clearly directed at the worker not solely her employer and were defamatory in nature and “would all tend to lower her reputation in the eyes of a reasonable person”. See AHS supra at para. 61.
Harassment
In regard to harassment as a potential tort in Alberta, the court laid out a framework for determining whether the tort of harassment has been committed, see AHS supra, at para. 107:
- engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through or 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 opined that the tort of harassment in Alberta, “does not open floodgates, but defines a measured way to guide courts in the future.” See AHS supra, at para. 108.
In terms of the remedies awarded to the worker, the court found that the tort of harassment has been made out and awarded her $650,000 in damages plus costs.
The Role of HR in Mitigating Workplace Harassment and Defamation
HR professionals are at the forefront of developing and enforcing policies that foster a respectful workplace environment. This involves creating clear definitions of unacceptable behaviour, including defamation and harassment, and establishing processes for reporting and addressing such conduct. Training programmes that educate employees about the legal and ethical aspects of their interactions can further mitigate the risk of defamation and harassment in the workplace.
Protect Your Organization with Expert Guidance on Navigating Complex HR Issues
The complexities highlighted by the AHS case, emphasise the value for HR professionals in seeking expert legal support in navigating workplace issues and conducting workplace investigations related to workplace defamation and harassment allegations.
With decades of experience handling workplace issues, Neil Hain can offer comprehensive support on developing effective strategies and policies to protect against legal risks while fostering a healthy workplace culture. Feel free to contact Neil Hain Dispute Resolution for any workplace investigation, mediation or arbitration services.
