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Appellate Litigation

The internet has opened up new avenues for communication over the past twenty-five years, allowing for unfettered access to information and ease of communication. However, it has also created new means for negative interactions, including harassment, which, given the platform, can make it relentless and difficult to escape. While Ontario law has long addressed various forms of harassment through civil torts such as defamation, and intentional infliction of mental suffering, it had yet to recognize the specifics of online harassment through the creation of a formal cause of action. Courts have even considered and rejected the notion of adding new torts to address harassment specifically, such as in a case we addressed last year called Merrifield v. Canada (Attorney General).

However, a new decision of the Ontario Superior Court has taken the step of recognizing a new cause of action, creating the tort of harassment through internet communication. While the decision has yet to be tested by an appeal, and the elements of the tort are highly fact-specific, it has currently opened up the options available to those wishing to bring a claim for harassment that takes place in an online environment.

Merrifield v. Canada (Attorney General): Why the Court Rejected Creating a New Tort

The case was brought by a former RCMP officer, due to harassment he suffered at the hands of his superiors and colleagues. While the harassment was not online, as in the case discussed below, the trial judge had allowed the creation of a new civil tort of harassment to address the treatment the claimant had faced in the workplace, particularly by members of management. However, on appeal, the ONCA rejected the new tort, claiming the trial judge had erred in creating a new tort where there was already a cause of action available to address the situation, called intentional infliction of emotional suffering.

The ONCA went on to say that courts have an obligation to work within existing causes of action whenever possible and avoid creating new ones just because it may be convenient to do so. Since the issue of workplace harassment could be adequately addressed through a claim for the intentional infliction of emotional suffering, no new cause of action was warranted.

Defendant Spent Years Harassing Individuals Online, Despite Past Reprimands

In the case at hand, Caplan v. Atas, the defendant was a former realtor who had spent years carrying out various online campaigns targeting individuals and organizations online with relentless and vicious attacks and defamatory statements as reprisal for numerous longstanding grudges.

The defendant had taken to using social media sites such as Facebook and Pinterest, as well as anonymous professional service review sites, to post accusations and comments against various people she had been in contact with. Some included her former employers, legal counsel, journalists, and extended to include family members of those people, with whom she had never interacted. The posts ranged from abusive negative content to defamatory statements and accusations of professional misconduct and even criminal behaviour.

The defendant had been the subject of several civil actions in the past related to the posts and had injunctions ordered to prohibit her behaviour. She had also been labelled a vexatious litigant due to several actions she had brought in the past, and she had even been jailed for over two months for contempt of court. At the time of the most recent case, the defendant had been insolvent for a number of years.

Court Deems it Necessary to Establish New Cause of Action

In considering the defendant’s long history of legal embroilments, it became clear that findings based in defamation, the intentional infliction of mental suffering, and other torts had not been successful in putting a stop to her behaviour. The Court found it was necessary to create a new cause of action called harassment in internet communications. In doing so, the Court identified a three-step test to identify the behaviour:

  1. 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. The defendant’s intent is to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and
  3. The plaintiff suffers such harm.

The Court ordered a permanent injunction prohibiting her from publishing any content directed at or about the plaintiffs, the families, or their business associates anywhere online. However, the Court also acknowledged that the defendant had previously shown no deference to Court orders, and so the Court also transferred ownership of all existing posts to the respective plaintiffs, giving them the power needed to have the posts pulled from the various hosting sites themselves.

In addressing the creation of the new cause of action, the Court acknowledged the ONCA’s finding in Merrifield that Courts should avoid creating new causes of action out of convenience, but distinguished the case at hand, saying that existing torts such as defamation had proven to be insufficient to address the type of behaviour and persistence displayed by the defendant.

The new tort has yet to be addressed in an appeal, and so it is in the early stages. However, if upheld, the tort of harassment through internet communication may open the door for more stringent remedies for individuals and organizations who become the subject of persistent, targeted harassment in various online forums.

At Milosevic & Associates, we keep abreast of evolving legal developments in the common law and often blog about precedent-setting or otherwise significant decisions. We invite you to read our weekly blogs or to contact our litigation lawyers directly by phone at 416-916-1387 or online if you have questions about recent developments in the law.