Ontario Court Recognizes New Tort of Harassment
In a decision released January 28, 2021, the Ontario Superior Court of Justice in Caplan v Atas, 2021 ONSC 670 (not yet published online) – a decision concerning four separate cases – recognized (again) a new civil tort of harassment in a case whose dramatic decision appears only too fitting for the sensational saga that preceded it.
Key Facts and Findings: The decision’s strongly-worded introduction gives readers an immediate glimpse into just how extreme the underlying facts of this case are. The defendant carried out “extraordinary campaigns of [online] malicious harassment and defamation carried out unchecked, for many years”, “cyber-stalking”, and “vile” “disproportionate” defamatory messages “[u]nrestrained by the basic tenets of decency.” The Court estimated 150 victims of the defendant’s online campaigns who were targeted for various and unrelated reasons, some of which stemmed from as long ago as the 1990s. When enjoined from mounting her campaigns against her true targets, the defendants would shift her focus to the victim’s family members (including children) and associates. The Court describes the defendant’s “lack of empathy” as “sociopathic”.
The defendant, already declared a vexatious litigant, has a long history of being difficult and uncooperative in multiple legal proceedings in which she had been involved. In the defamation proceedings, she breached various procedural and interlocutory orders and had already been cited for contempt of court. For her contempt, she has spent 74 days in jail, plus another day in custody at the courthouse. Further, because the defendant is an undischarged bankrupt (having made an assignment in bankruptcy on the eve of the summary judgment motions) whose poverty leaves her “judgment-proof”, a remedy of compensation was not available in this case.
Following a finding of defamation for which no defence had been established as well as a finding of the new tort of harassment (discussed below), the Court ordered a permanent injunction enjoining the defendant from mounting similar campaigns (though the Court notes it would have given serious consideration to a broader injunction, had it been asked, to restrain the defendant from virtually all online activity). The Court declined to order that an apology be made or that the defendant remove all impugned content given that, among other things, such orders are not likely to be effective against this defendant and would only prolong the conflict between the parties.
New Tort of Harassment: Except for the US, no other common law court has recognized the common law tort of harassment, despite the rise and prevalence of online harassment. A previous decision had tried to establish such a tort, but was overturned by the Court of Appeal for Ontario because other torts (i.e. intentional infliction of mental suffering) were available and provided sufficient remedy in that case.
According to the Court in Atas, however, this case “illustrates some of the inadequacies in current legal responses to internet defamation and harassment.” The tort of invasion of privacy/intrusion upon seclusion was not available to the plaintiffs because the defendant had not invaded the plaintiffs’ private affairs. And the tort of intentional infliction of mental suffering was not available because there was no evidence that the plaintiffs had suffered the requisite “visible and provable illness” as a result of the defendant’s conduct. Per the Court, the law would be deficient “if it did not provide an efficient remedy until the consequence of this wrongful conduct caused visible and provable illness.”
As a result, the Court found this case to be appropriate to recognize the new tort. The Atas decision does not appear to address why the remedy for defamation was not sufficient in this case.
Per the Court’s decision in Atas, to establish the new tort of harassment the plaintiff must show that:
- 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;
- The defendant’s communications conduct was made with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and
- The plaintiff suffered such harm.
Takeaway: In many ways, the future of this new tort remains uncertain. We do not yet know if the Atas decision will be appealed or brought for the Court of Appeal’s consideration through another case. It is also possible that the legislature intervenes with a statutory response.
For now at least, the Atas decision is law. Though the case recognizes a tort of harassment, it sets a very high bar for a plaintiff to clear, in particular in the first element of the tort (malicious or reckless communications conduct of outrageous and extreme character, duration and degree). It is difficult to imagine another case with similarly dramatic facts as in Atas, so future decisions will have to decide whether and in what circumstances lesser dramatic (yet still egregious) facts will make the cut.
Take for example, the Paramount v Kevin J. Johnston decision, which in 2019 ordered a precedent-setting damages award for defamation ($2.5 million). In that case, the defendant had carried out a malicious online campaign of harassment and defamation spanning years (but not decades) targeting the two plaintiffs; the defamatory remarks contained the essential hallmarks of hate speech (e.g. Islamophobia and xenophobia); when the impugned content was taken down from one platform, the defendant would create a new account or post the content to another platform; the defendant had accosted the plaintiff and his young children in a public shopping mall and posted video of the incident online; and the defendant also targeted members of the plaintiff’s legal teams online and in person. Would the facts of that case have satisfied the test for harassment? (I would argue yes, but I am admittedly biased)
One thing is for sure, it will be very interesting for laypersons and legal geeks (like me) alike to watch this new area of law develop.