New Tort of Internet Harassment in Ontario

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In Caplan v. Atas, 2021 ONSC 670, the Ontario Superior Court of Justice recognized the new tort of “harassment in Internet communications”.

On January 28, 2021, Justice Corbett issued the decision, which arose from a consolidation of four proceedings, all of which related to a 20-year campaign of online defamation, harassment and abuse perpetrated by Ms. Atas. She targeted as many as 150 victims, both anonymously and pseudonymously. Her harassing behaviour targeted, among others, a former employer who had terminated her for cause and her former legal counsel, as well as their relatives. Ms. Atas’ unfounded allegations against these individuals suggested that they had engaged in incompetence, negligence, professional misconduct, fraud, and even pedophilia and other forms of sexual predation. Overall, Ms. Atas’ conduct is perhaps best described in the first paragraph of the Court’s decision, which reads as follows:

These cases concern extraordinary campaigns of malicious harassment and defamation carried out unchecked, for many years, as unlawful acts of reprisal. Nadire Atas, has used the internet to disseminate vicious falsehoods against those towards to whom she bears grudges, and towards family members and associates of those against whom she bears grudges. Atas is destitute and apparently content to revel in ancient grievances, delighting in legal process and unending conflict because of the misery and expense it causes for her opponents.

The Court went on to describe Ms. Atas’ lack of empathy for her various victims as “sociopathic”.

It was clear to the Court, after applying the well-established test, that Ms. Atas’ conduct constituted defamation without legal defence. What was equally clear to the Court, however, was that the recourses available to a plaintiff who successfully establishes defamation are insufficient to bring to an end the type of conduct engaged in by Ms. Atas, which conduct the Court further described as going “beyond character assassination: it is intended to harass, harry and molest by repeated and serial publications of defamatory material, 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.” In its decision, the Court detailed the specific ways in which the law had failed to adequately respond to Ms. Atas’ conduct, noting that she had persisted in her cyberstalking and defamation despite having been declared a vexatious litigant, assigned into bankruptcy, made subject to several injunctions, and even incarcerated for 74 days following a finding of contempt of court.

The Court thus concluded that the only way to remedy such a course of conduct was the recognition of a new tort, which it titled the tort of harassment in Internet communications. In so finding, the Court appeared to depart from the reasoning of the Ontario Court of Appeal, provided less than two years earlier, in its decision in Merrifield v. Canada (Attorney General), 2019 ONCA 205.

As readers of our Focus Alerts may recall, in Merrifield, the Court of Appeal had refused to recognize the existence of a tort of harassment in Ontario on the basis that the existing tort of intentional infliction of mental suffering was sufficient to provide a remedy to the plaintiff in that case, and there was no other compelling reason for the creation of a new tort at that time. The Court of Appeal did, however, leave the door open for the development of a tort of harassment in an “appropriate” case.

In Atas, the Superior Court of Justice found one such appropriate case. The Court distinguished Merrifield, finding that, in the case before it, neither defamation nor intentional infliction of mental suffering, nor intrusion upon seclusion adequately described – or offered sufficient remedy for – what the defendants had gone through. Noting both that this is a developing area of the law and the unfortunate dearth of legislation in Ontario to address online harassment, the Court concluded that the facts of the case before it were ones thatcry out for a remedy”.

The test for the application of the tort of harassment in Internet communications is the same stringent test used by American courts. Pursuant to that test, online harassment may be established as follows:

  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 such harm.

The outrageous facts of the case before the Superior Court of Justice in the Atas case clearly met this threshold.

Following the finding of defamation and online harassment, the Court then turned to the issue of remedy. Of note was the fact that, while the defendant had once been a real estate professional with multiple income properties, she was now “destitute” and living in shelters; in other words, stated the Court, she was “judgement-proof”. Thus, instead of monetary compensation, the Court ordered a permanent injunction to stop Atas from carrying out another campaign of harassment against the defendants and their families. The Court also noted, had such been requested by the plaintiffs, it would have considered a complete prohibition against virtually all online activities by Atas.

Since an order to have Atas remove the objectionable content she had created from the Internet would be futile (due to, among other things, her historic refusal to follow court orders and her inability to pay for any related expenses), the Court ordered that title for the impugned online content created by Atas would vest with the plaintiffs, thereby permitting them to take steps to have the content removed themselves.

 

In Our View

The introduction of the tort of harassment in Internet communications into Ontario law appears to be the Court’s attempt to address online harassment given the lack of a legislated response. Since the tort was created in the context of extreme, targeted and pervasive harassment, it remains to be seen whether and how the new tort may apply in the context of less outrageous – though still problematic – online harassment.

It appears, at least initially, that the application of the new tort within the employment law setting will likely be limited. The test sets a high threshold (i.e., “outrageous” and “extreme” harassment that goes “beyond all possible bounds of decency”) unlikely to be met in the typical case of employee-on-employee harassment, or even by a rogue ex-employee’s post-termination comments regarding their former employer. The decision itself states, at the outset, that it is a “solution tailored […]” to address “only the immediate problem of a lone publisher, driven by hatred and profound mental illness, immune from financial constraints and (dis)incentives, apparently ungovernable except through […] incarceration.”

There is also the possibility that the decision will be appealed to the Ontario Court of Appeal. While such an appeal appears all the more likely given the appellate court’s recent decision in Merrifield that the development of a new tort of harassment was not necessary as at that time, Ms. Atas’ ability to appeal may be somewhat impaired by the fact that she has been declared a vexatious litigant, and thus requires permission from a Superior Court Justice in order to launch an appeal.

Emond Harnden LLP will keep readers posted on the development of the new tort of harassment in Internet communications over time and, in particular, the issuance of any decisions involving the application of the new tort to workplace parties. For more information, please contact Porter Heffernan at 613-940-2764Sébastien Huard at 613-940-2744 or Marianne Abou-Hamad at 613-563-7660 ext. 259.