In its recent decision in Caplan v. Atas, 2021 ONSC 670, the Ontario Superior Court recognized a new tort of “harassment in internet communications” in response to a defendant’s nearly 20-year campaign intended to “harass, harry, and molest” the plaintiffs through online posts.
The decision concluded four actions against the defendant brought by targets of her years-long campaigns of online harassment and defamation. The plaintiffs in the four actions included lawyers involved in mortgage enforcement and other proceedings against her; a former employer and its successor company; and family members and associates of the primary targets.
The plaintiffs alleged that the defendant posted extensive defamatory material online, including allegations of professional misconduct, fraud and sexual criminality, some of which spanned a nearly 20-year period. The plaintiffs presented evidence of 3,747 online posts on 77 websites directed against 150 victims, as well as evidence that the defendant had contracted a sex worker to post defamatory content.
The Statements of Claim in each of the four actions pleaded defamatory libel as a cause of action and two actions also pleaded common law ‘harassment’ and ‘private nuisance’. The actions were before the court as three summary judgment motions and a motion for default judgment. The defendant, an experienced self-represented litigant, had been designated a “vexatious litigant” pursuant to section 140 of the Courts of Justice Act. Throughout the course of these four cases she failed to file responding materials, also failed to comply with various other procedural orders and as a result spent 74 days in jail for contempt of court.
Decision and recognition of tort of harassment in internet communications
The Court held that the content of many of the thousands of postings defamed the plaintiffs, their families and their associates. The defendant raised two arguments in response: first, that the defamation claims were barred due to failure to comply with the time period and notice requirements in the Libel and Slander Act; and second, the defence of justification. The Court was not persuaded that either defence applied.
The plaintiffs’ actions were largely based in defamation. However, the Court noted that traditional defamation law remedies were not sufficient to address all aspects of the defendant’s conduct and held that the tort of internet harassment should be recognized. The Court adopted the “stringent” American test for the tort of harassment in internet communications, requiring proof that:
(1) The defendant maliciously or recklessly engaged 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) They did so intending to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff;
(3) And that the plaintiff suffered such harm as a result.
In recognizing the new tort, the Court distinguished these cases from the Court of Appeal’s decision in Merrifield v Canada (Attorney General). In Merrifield, the trial judge recognized a common law tort of harassment in the employment context, but the Court of Appeal overturned the trial decision. The Court of Appeal concluded that:
(1) The tort of intentional infliction of mental suffering was a sufficient remedy in the circumstances; and
(2) There was insufficient foreign judicial authority, academic authority, or compelling policy rationale before them to recognize a new tort.
While acknowledging the Court of Appeal’s reticence to recognize new torts, the Court distinguished Merrifield from the cases under consideration. First, the Court found that the tort of intentional infliction of mental suffering was an inadequate remedy because there was no evidence that the plaintiffs had suffered “visible and provable illnesses,” as required to make out that tort. Second, the Court canvassed the law in other jurisdictions, the Law Commission of Ontario’s investigation into internet defamation, as well as studies on the extent and devastating impact of cyber harassment and found that while the law was developing, the cases in question “[cried] out for a remedy.”
The plaintiffs abandoned any monetary remedies, as the defendant is insolvent, and instead sought permanent injunctions and an apology. The Court declined to order an apology, but granted a permanent injunction preventing the defendant from posting about the plaintiffs, their families and their business associates on the internet. The Court also agreed to vest title in the existing postings in the plaintiffs (or their agents), enabling them to take steps to have the content removed.
This case is significant for recognizing a new tort in Ontario, the tort of harassment in internet communications. The Court adopted the “stringent” American test for the tort mentioned above.
While the Court noted the prevalence of online harassment and the risks it poses, future cases are likely to test the bounds of the tort as the extreme nature and duration of the defendant’s conduct sets a high precedent.