In a January 28, 2021 decision, a judge of the Ontario Superior Court, recognized a new tort as the only way to provide redress to the victims of a multi-decade campaign of despicable conduct “unrestrained by basic tenets of decency” culminating in four distinct actions against the offending individual.

Over the course of 247 paragraphs, Corbett. J. outlined a long history of abuse and harassment over the internet including unfounded allegations of pedophilia, hateful messages directed at widows, and more. Over the course of 15+ years, the defendant continued her campaign despite bankruptcy, court orders, her declaration as a vexatious litigant, and incarceration.

In arriving at this decision, Corbett J, found that the available remedies available to the plaintiffs at law were inadequate, or inapplicable to the “sociopathic” behaviour outlined by the facts.

While Corbett J. established that the defendant had defamed some of the plaintiffs, the conduct in this case was intended to go beyond defamation and was intended to:

[H]arass, harry and molest by repeated and serial publications of defamatory materials, not only of primary victims but to cause those victims further distress by targeting persons they care about, so as to cause fear anxiety and misery.

Drawing on the American case law, Corbett J. set out the following test for the tort of “harassment in internet communications”:

  1. Where the defendant maliciously or recklessly engages in communications conduct; so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance;
  2. With the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and
  3. The plaintiff suffers harm.

This was expressly noted to be a “stringent test”.

Notably, there was no mention of what sort of damages such a tort would attract. The defendant was judgment proof, so the focus was on injunctions and providing the plaintiffs a remedy to remove the offending content from the internet. Ultimately, it appears Corbett J., proposed to make an order vesting title in the implicated postings to the plaintiffs, with additional orders enabling them to take steps to have the content removed.

In short, it appears that the defendant’s internet content would become the property of the plaintiffs, which would allow them to require third party internet providers to remove the content.

What about Merrifield?

What about Merrifield v. Canada (Attorney General), 2019 ONCA 205, where the Ontario Court of Appeal found that the tort of “harassment” had not been recognized in Ontario? In overturning the trial decision in Merrifield, the Court of Appeal found that the authorities did not support the recognition of a tort of harassment at that time. Notably, the Court felt that the parties had not provided sufficient evidence of the development of a new common law tort in other jurisdictions, and that other tort remedies were available to the plaintiffs that addressed the alleged conduct. Unlike the decision of Jones v. Tsige, which saw the recognition of the new tort of “intrusion upon seclusion”, the Court in Merrifield felt the facts did not “cry out for a remedy” and closed the door on the tort of harassment.

However, they left the door unlocked:

[53] In summary, while we do not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts, we conclude Merrifield has presented no compelling reason to recognize a new tort of harassment in this case.

Twenty two months later, Corbett J.’s decision has kicked through that door. The judge took pains to reference the literature on the actual harms of cyber-bullying on victims, the development of the tort of harassment in the United States, as well as several legislative enactments to counter cyber bullying in Canadian jurisdictions. In recognizing the tort in this specific context, Corbett J., outlined how this case “cried out for a remedy”:

  1. Unlike Merrifield, the tort of intentional infliction of mental distress was inadequate because it was not designed to addressed conduct that was persistent and repetitive, and there was no evidence of visible or provable illnesses as a result of the defendant’s conduct;
  2. The conduct, while some of it defamatory, went beyond simple “character assassination” and was designed to harass, harry and molest the plaintiffs and their families;
  3. The tort of intrusion upon seclusion was also inapplicable because the defendant had not invaded the private affairs or concerns of the plaintiffs, rather she published false statements that caused harm;

More succinctly, Corbett J., found that:

[4] Freedom of speech and the law of defamation have developed over centuries to balance the importance of preserving open public discourse, advancing the search for truth (which must allow for unpopular and even incorrect speech), protecting personal reputations, promoting free democratic debate, and enforcing personal responsibility for statements made about others. The value of freedom of speech, and the need for some limits on that freedom, have long been recognised as central to a vibrant and healthy democracy and, frankly, any decent society.

[5] The internet has cast that balance into disarray

In making this ruling, Corbett J. recognized that the most appropriate solution would be legislative intervention but in its absence, he considered the recognition of this tort the appropriate remedy to the inadequacies of the current legal response.

Take-Aways

What does this mean for the law in Ontario? This remains to be seen. They say “bad facts make bad law”. The facts of this case are horrific and unlikely to be repeated. In its current form, the tort of “harassment in internet communications” may be a solution to a unique problem. It is clearly meant to be a stringent test applied to only the most egregious situations. The requirement that conduct go “beyond all possible bounds of decency and tolerance” will need to be fleshed out by further rulings but it appears to be a standard higher than conduct required in the privacy tort, “intrusion upon seclusion” or “intentional infliction of mental distress”.

While the Defendant will no doubt try to appeal, she has been declared a vexatious litigant. She requires permission from the Superior Court to appeal this judgment. Corbett J., directed that the request would be heard by a separate judge assigned by Regional Senior Justice Firestone.

If permission is granted, and it might be because of the recognition of a new tort, this will cause its own difficulties. Given her status as a vexatious litigant, and her history of mounting frivolous defences, the Ontario Court of Appeal could appoint amicus counsel to present the case. Although Corbett J.’s decision was clearly written to address the issues raised in Merrifield, it remains to be seen if the Court of Appeal will accept this new development so soon after it claimed the tort of harassment was dead in Ontario.

We’ll have to wait and see.

The decision, Caplan v. Atas, 2021 ONSC 670 can be found here.

Devan Marr

As the progeny of Canadian diplomats, Devan grew up in five different countries before returning to Canada. It was somewhere between Frankfurt and Vienna where Devan first learned to ride a bicycle. He is now a cycling fanatic: Devan is also the firm’s resident employment law fanatic. Got an employment practices liability policy question? Devan has your answers.

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