The civil litigation system's role in addressing harassment has been a vexing issue for the past decade. Traditionally, the availability of other torts, such as intentional infliction of mental distress and defamation, along with concerns about “opening the floodgates” to a wave of litigation had resulted in some hesitation towards the adoption of a novel tort of “harassment”. This hesitation was cast aside in the recent Ontario Superior Court decision of Caplan v Atas, 2021 ONSC 670. (“Caplan“). In Caplan, Justice Corbett of the Ontario Superior Court of Justice expressly recognized a new common law tort of “internet harassment”.1
Facts
The Caplan decision stemmed from four separate legal claims for defamation against the defendant, Nadire Atas (“Atas”). The plaintiffs sought summary judgment against the defendant, alleging defamatory libel, harassment, and nuisance.
Atas had engaged in campaigns of malicious harassment and defamation over the course of many years. Atas had used the internet to disseminate vicious falsehoods about those against whom she held grudges, including the plaintiffs. Atas carried out this harassment by posting altered newspaper articles online, disseminating falsified emails to her victims' employers, posting abusive comments on social media and distributing letters to the plaintiffs' neighbours containing defamatory statements.
The targets of these posts included adverse parties in litigation to Atas, as well as their relatives, Atas's own lawyers, a former employer and its employees. Put simply, Atas cast a wide net.
In his decision, Justice Corbett described the defendant's actions as “systematic campaigns of malicious falsehood to cause emotional and psychological harm to persons against whom she has grievances”2 and concluded that these actions were aimed at causing emotional and psychological harm to Atas's adversaries.3
Before recognizing the new tort, Justice Corbett examined the existing common law torts that could have been applicable to the facts before him, including defamation, intentional infliction of mental suffering and intrusion upon seclusion. However, Justice Corbett held that these previously existing torts did not appropriately capture the defendant's conduct, and that the tort of internet harassment should be recognized.
The Test
After a comprehensive review of American authorities, Justice Corbett established the following three-part test for the tort of “internet harassment”:
- a) The defendant maliciously or recklessly engaged in communications and conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance;
- b) The defendant intended to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff;
- c) The plaintiff suffered such harm.4
In recognizing the tort of “internet harassment”, Justice Corbett explained that he was mindful that Merrifield v Canada (a recent case in which the Ontario Court of Appeal rejected adopting a new common law tort of harassment) strongly cautioned against quick and dramatic developments of the common law.5 However, the Court in Merrifield had not foreclosed the possibility of the tort of harassment, having instead held that it “[did] not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts”.
Justice Corbett acknowledged that often courts are not in the best position to address complex new legal problems and called on the legislature to intervene in order to fashion a response to circumstances such as those before the Court.6 Nonetheless, Justice Corbett explained that the facts of this case were very different from the facts in Merrifield and in fact, were much closer to the facts before the Ontario Court of Appeal in Jones v Tsige, 2012 ONCA 32 where the Ontario Court of Appeal recognized the novel tort of “intrusion upon seclusion”. As a consequence, Justice Corbett was prepared to recognize the tort of “internet harassment”, stating:
in my view, the tort of internet harassment should be recognized in these cases because Atas' online conduct and publications seek not so much to defame the victims but to harass them. Put another way, the intent is to go 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. The social science literature referenced above makes it clear that real harm is caused by serial stalkers such as Atas.
Remedy
In addition to recognizing the tort of “internet harassment”, Justice Corbett crafted a relatively unusual series of remedies in order to respond to the facts before the Court. First, Justice Corbett granted an order “in the nature” of mandamus compelling Atas to remove any and all of the offending materials. Such an order appears to share some similarities to a mandatory injunction insofar as the defendant is compelled by the Court to take positive steps to remove the offending materials.
Justice Corbett also granted a permanent injunction preventing the defendant from posting about the plaintiffs, their families, and their business associates on the internet. However, Justice Corbett explained that a permanent injunction, by itself, would not be sufficient to bring Atas' wrongful conduct to an end. Given that the defendant frequently refused to follow court orders, Justice Corbett proceeded to vest title in the existing posts to the plaintiffs, so that they could take the necessary steps to have the content removed from the internet.
The unusual relief granted by Justice Corbett in Caplan may provide some insight into the type of remedies available to address harassment of the nature found in Caplan.
Looking forward
One of the pressing questions following the Caplan decision is whether it will be appealed. If so, it is unclear how the Ontario Court of Appeal will treat this decision, bearing in mind the fact that in the Merrifield decisions, the Ontario Court of Appeal had previously refused to recognize the tort of harassment (in the employment context).
The adoption of this tort in other provinces, such as Manitoba, will be equally interesting to watch for over the coming months and years. At a minimum, the decision appears to provide a new tool to address certain instances of particularly serious and persistent harassment in circumstances where the law may not have previously provided recourse.
Footnotes
1 Caplan v Atas, 2021 ONSC 670
2 Caplan at para 7.
3 Caplan.
4 Caplan at 171.
5 Merrifield v Canada (Attorney General), 2019 ONCA 205
6 Caplan at para 173.
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