#cyberbullying | #cyberbully | Caché Derrière L’écran : L’Ontario Reconnaît Un Nouveau Droit D’action Pour Cyberharcèlement – Employment and HR


Après un réexamen de
l’équilibre entre la liberté d’expression et
le droit de la diffamation à l’ère
d’internet, la Cour supérieure de justice de
l’Ontario a reconnu dernièrement un nouveau délit
de cyberdiffamation et de cyberharcèlement dans le jugement
Caplan v. Atas, 2021 ONSC 670
(« Caplan  »).

Ce billet est disponible en anglais seulement.

In re-examining the balance of freedom
of speech and the law of defamation in the Internet age, the
Ontario Superior Court of Justice has recently recognized a new
tort for internet defamation and harassment in
Caplan v. Atas,
2021 ONSC 670
(“Caplan“).

Background

This case arose out of four related actions against the
defendant for defamatory libel, harassment and private nuisance.
The plaintiffs in these cases, who included counsel from previous
litigation involving the defendant and ex-employers of the
defendant, alleged that the defendant had engaged in continuous and
unrelenting online harassment, bullying and hate speech. In most of
these cases, the harassment had been ongoing for more than a decade
and had extended to some of the plaintiffs’ respective family
members and other associates.

Ultimately, the plaintiffs banded together to bring an
application to have the defendant declared a “vexatious
litigant” under the Courts of Justice
Act,1
alleging that numerous baseless legal
proceedings had been brought against the plaintiffs as part of the
overall pattern of harassment. The plaintiffs were successful in
this application, and consequently, the defendant’s ability to
appeal or commence any further proceedings against the plaintiffs
without leave of the court was limited. Subsequently, three of the
four plaintiffs moved for summary judgment of their claims against
the defendant, and one moved for default judgment, due to her
failure to file a statement of defence in that case.

Throughout the proceedings, the defendant defied the Court’s
orders and acted in a manner that appeared calculated to delay and
prolong the litigation. Moreover, the defendant continued to
publish vicious allegations after the lawsuits began, in response
to which the Court granted interim injunctions prohibiting her
from: (i) publishing any statements regarding the plaintiffs or any
related parties; and (ii) after this order was disregarded, posting
anything online at all, with the narrow exception of allowing her
to sell products on Kijiji or similar sites. In spite of these
orders, the barrage of harmful posts continued and did not stop
even after the defendant spent 74 days in jail for contempt of the
Court’s orders.

While the plaintiffs filed more than 30,000 pages of evidence in
support of their motions, the defendant filed no evidence in
response. Ultimately, Justice Corbett granted judgment in favour of
the plaintiffs on all four motions.

The Decision

Justice Corbett found that the defendant had “engaged in a
vile campaign of cyber-stalking against the plaintiffs. The goal of
which has been retribution for long standing grievances”. He
further noted that current defamation laws in Ontario were
insufficient to respond to the defendant’s conduct and deter
her and others from such conduct in the future.

Despite the breadth of online harassment and hateful speech
across the internet, academics and jurists alike have noted that
there are few practical remedies available for its victims. In
Canada, only a few provinces have introduced legislation to combat
cyberbullying, following earlier developments in England, Australia
and New Zealand.

A new tort of Internet harassment

The Court noted the shocking prevalence of online harassment and
the potentially devastating effects harassment can have on a
target’s mental health, career, reputation and legal rights.
Although the Ontario Superior Court of Justice had previously
recognized a common law tort of harassment in the employment
context, this had been recently overturned by the Court of Appeal
in Merrifield v Canada, 2019 ONCA 205
(“Merrifield“). The Ontario Court of Appeal in
Merrifield found that the tort of intentional infliction
of mental suffering was a sufficient remedy in the circumstances
for workplace harassment, and held it had not been provided with
any foreign judicial authority, academic literature or compelling
policy rationale to justify recognizing a new tort.

Justice Corbett concluded that the requisite element of a
“visible and provable illness” rendered the tort of
intentional infliction of mental suffering inadequate in the
circumstances. He held it should not require evidence of such
illness to affect a proper remedy for wrongful conduct. However,
Justice Corbett cautioned that this tort would only apply in
“the most serious and persistent of harassing conduct that
rises to a level where the law should respond to it”.

Distinguishing the Court of Appeal’s findings in
Merrifield, Justice Corbett adopted the
“stringent” American test for the tort of internet
harassment proposed by the plaintiffs:

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, with the intent to cause,
fear, anxiety and emotional upset or to impugn the dignity of the
plaintiff, and the plaintiff suffers harm.

Justice Corbett cautioned that the tort should be limited to
cases where the intent of the harasser goes beyond character
assassination, and instead, 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.”

Relief granted

Acknowledging that the defendant had made an assignment into
bankruptcy on the eve of the plaintiffs’ motions and was
without assets, the Court granted a permanent injunction
prohibiting the defendant from any Internet communications
involving the plaintiffs and all “other victims” of her
conduct. As a novel finding, Justice Corbett held that the Court
was entitled to order the defendant to desist from defaming and
harassing non-parties where the conduct was part of a
campaign of harassment directed against the plaintiffs.

The Court also transferred title of the impugned postings and
email accounts to an independent third party appointed by the Court
in order to take the necessary steps to have them removed. Although
requested, the Court declined to order a forced apology from the
defendant as it would carry little weight and possibly draw further
attention to the impugned words and postings.

Key Take-Aways

The Court’s recognition in Caplan of the harms
caused by Internet harassment, and the lack of available legal
remedies for its victims, is an important first step in addressing
the harms caused by such actions. However, as reflected by the Law
Commission of Ontario’s report regarding the state of
defamation law in the internet age2, Ontario remains
ill-equipped to provide practical remedies to these problems, and
the cause may be better advanced by the legislature.

Indeed, Justice Corbett acknowledged that the recent Court of
Appeal decision in Merrifield strongly cautioned against
quick and dramatic developments of the common law and that often
courts are not in the best position to address complex and novel
legal problems. However, despite these acknowledgements, Ontario
has a new tort of Internet harassment with presently unknown
applications.

One would hope that campaigns of harassment of the type
exemplified in Caplan will be rare. Moving forward, it
will be interesting to see where else this cause of action is
advanced and how far beyond “character assassination”
wrongdoers must go to face legal repercussions.

Footnotes

1. Section 140 of the Courts of Justice Act
allows a person to be declared a vexatious litigant if, among other
criteria, the litigant has brought an action (a) with respect to an
issue or issues already determined; (b) where it is obvious it
cannot succeed; (c) for an improper purpose; or (d) on grounds or
issues rolled-forward or supplemented (Goodlife Fitness Centres
Inc.
v Hicks, 2019 ONSC 4942).

2. Law Commission of Ontario, Defamation Law in the
Internet Age
(Final Report: March 2020) https://www.lco-cdo.org/wp-content/uploads/2020/03/Defamation-Final-Report-Eng-FINAL-1.pdf

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