A wooden Gavel
A wooden Gavel Credit: Tingey Injury Law Firm / Unplash Credit: Tingey Injury Law Firm / Unplash

It’s not every day that a Canadian court creates a new tort. But in its April decision in Alberta Health Services v Johnston (“Johnston”), the Alberta Court of King’s Bench did just that.

Tort law covers civil wrongdoings. If you’ve ever sued somebody, thought about suing somebody, or seen somebody sue another person on TV, you already know a little bit about tort law. It’s an area of law that compensates people for private harms they’ve suffered (as opposed to criminal law, which punishes “public” wrongs).

But you can’t sue somebody for just any reason. You must have suffered a “tort.” Which is just a fancy legal way of saying that you must have suffered an injustice that the courts recognize and compensate people for.

The most common tort is negligence. But you can also sue people in tort for things like defamation, assault, trespassing, or nuisance. And in Alberta, you can now sue people in tort for harassment.

That’s a big deal for trans people like myself, who are all too often the subject of terrible harassment online. It means we can take legal action against the trans-exclusionary radical feminists (“TERFs”) who orchestrate that harassment. It means we can seek justice—and have a shot at winning.

The new tort of harassment

The new tort of harassment has four components. These are the things a plaintiff—that is, the person bringing the legal action—must prove to show that harassment has, in fact, occurred.

First, the harasser must have “engaged in repeated communications, threats, insults, stalking, or other harassing behaviour in person or through or other means.” The repetition is important. One-off behaviour, however outrageous, doesn’t qualify as harassment; “harassment occurs when the behaviour is recurring and creates an oppressive atmosphere.” Second, the harasser must either know, or be expected to know, that the harassing behaviour was “unwelcome.” Third, the harassing behaviour must “impugn the dignity of the plaintiff” or be such as “would cause a reasonable person to fear for her safety or the safety of her loved ones, or could foreseeably cause emotional distress.” And, finally, the harassing behaviour must have caused harm.

The facts in Johnston show a circumstance in which all four criteria were met—and hint at how the new tort of harassment could be applied to counteract transphobic harassment online.

There are two major characters in the drama that is this case: Sarah Nunn and Kevin Johnston.

Nunn is a public health inspector for Alberta Health Services (AHS) whose responsibilities included enforcing pandemic-related health orders. Johnston is a purveyor of “misinformation, conspiracy theories, and hate;” the host of the online talk show The Kevin J. Johnston Show; and an unsuccessful 2021 candidate for mayor of Calgary.

In public statements and interviews during the pandemic, Johnston accused AHS of various criminal offences, among them “extortion, intimidation, and terrorism.” His stated goal was “to bankrupt AHS members.” And he compared his own actions to the Nuremberg Trials, at which prominent Nazi officials were tried and convicted for war crimes and crimes against humanity.

Nunn was a particular target of Johnston’s vitriol. He “belittled” her, the Court found, describing her as a “terrorist” and an “alcoholic” and sharing photos of her that he lifted from Nunn’s unlocked social media accounts. “I intend to destroy this woman’s life like she has destroyed the lives of Calgarians,” Johnston stated; “she’s going to jail, and I’m going to gladly go see her in the jail cell and have a little chit chat with her about how and why she’s there and what we plan to do…she’s going to have to fight terrorism charges.”

In response to this sort of rhetoric and behaviour, AHS and Nunn asserted “tortious harassment,” among other civil claims against Johnston that included defamation.

Now, in previous cases out of British Columbia and Ontario, the courts had declined to recognize tortious harassment as a valid reason for suing somebody. But here, the Alberta Court of King’s Bench declined to follow suit. Why?

Because the law up until now did not address the harms that harassing behaviours cause people, in particular women and other marginalized people; and something needed to be done about it.

Tort law has always been an area of the law where judges have been free to recognize new remedies to existing or emerging harms. The judge in Johnston put it well: “As I proceed to consider whether the tort of harassment exists, I am mindful that the existing constellation of torts is a product of the accumulation of judicial decisions over many centuries. For most of this time, many harms experienced by women and members of other marginalized groups were not recognized. Harassment is something that can happen to anyone, but disproportionately affects women and members of other marginalized groups.”

And, in this case, the harassment particularly affected Nunn.

Johnston used mockery and pejorative terms to belittle her, amplifying this behaviour by sharing photos from her personal social media accounts. A reasonable person would have read Johnston’s rhetoric as inciting violence against Nunn. Johnston ought to have known that it was unwelcome. And Nunn began to fear for her safety and the safety of her family, going so far as to install a home security system and communicating with the police.

That’s harassment, plain and simple. 

Let’s call online harassment what it is

I have a personal stake in this discussion.

About two years ago, I authored a CBC opinion article calling on the federal government to take action to counter the transphobic misinformation being peddled by Canadian TERFs. Ever since, I have been a target for TERF harassment online.

Much of it has occurred on Twitter (or “X,” I guess?). But not all. And I’ll give you a recent example that occurred elsewhere on the internet.

In February of this year, a prominent TERF blog published an article attacking me, this column, and rabble’s decision to platform it. I won’t link to the blog here because I don’t want to give it the clicks. But I will give you a sense of what’s on it. (A content warning for hate speech: if transphobic rhetoric is triggering for you, please take care of yourself and skip ahead to later in this article.) 

I am misgendered throughout, and described as “an Alberta man, a law student, who decided two years ago to adopt a synthetic female sex identity.” My former and current places of work are publicly identified. A pre-transition photo from my Instagram account is shared, ostensibly to demonstrate that I am “really” a man. I am accused of being “a man appropriating both womanhood and feminism, a man who believes children need castrating and sterilization to be their ‘authentic selves’.” And rabble’s founder, Judy Rebick, is said to have “fallen in with the gender ideology cult—a global corporate-driven child abuse movement seducing children with the rhetoric ‘your body, your choice’”—a claim that implicates me by extension insofar as I am implied to be an agent of this “cult”.

This is not the first time I have been the target of such rhetoric, nor will it be the last. Any reasonable person would know that the rhetoric is unwelcome; and would interpret it as an incitement to target me for further harassment at my places of work and schooling. The idea that I am some kind of child abuser is deeply upsetting, not least because I am a survivor of child abuse myself. And the harassing behaviours of which the blog post is representative have caused me clear harms in the form of emotional distress and mounting therapy bills.

Tortious harassment is made out.

My goal in providing this example is not to make myself seem special, as if I have been uniquely victimized. Quite the contrary. What I am dealing with is the same sort of harassment trans women who exist online are regularly subjected to.

And it needs to stop.

But that will only happen if TERFs know they can no longer harass with impunity. It will only happen if trans people and our allies hit TERFs where it hurts: in their wallets. The new tort of harassment, properly deployed, gives us a powerful tool to do just that.

There’s always been a fuzzy line between being mean to someone and harassing them. But the line exists.

Let’s make TERFs pay for crossing it. Let’s start suing them.

Charlotte Dalwood

Charlotte Dalwood (she/they) is a Student-At-Law at Prison & Police Law in Calgary, AB; and a Master of Laws student at Osgoode Hall Law School of York University. Find Charlotte online at www.charlottedalwood.com.