In 2019, the Court of Appeal for Ontario declined to recognize a common law tort of harassment in Ontario in Merrifield v Canada (Attorney General)[1] but did not foreclose the possibility of future recognition in appropriate circumstances. Recently in Caplan v Atas,[2] Justice Corbett decided that the time had come to recognize the tort of online harassment.
Background
The issues in Caplan arose as the result of a campaign of online behavior that went on for over a decade. The defendant’s targets included adverse litigants, her own lawyers and agents, relatives of these people, a former employer, its successor, owners, managers, and employees, and a circle of individuals chosen to “cause misery to [the defendant’s] prime victims”.
Decision
Justice Corbett determined that while the conduct was clearly defamatory, it also rose to a higher level of misconduct that was not properly addressed by available torts. For example, unlike in Merrifield, the tort of intentional infliction of mental suffering was inadequate in these circumstances because there was no evidence of a “visible and provable illness”, a required element of that tort. Further, the tort of defamation was insufficient to capture the conduct of the defendant, which did not seek to defame the victims, but rather aimed to “harass, harry and molest” which Justice Corbett noted could result in real harm by causing fear, anxiety, and misery. Instead, Justice Corbett held that the tort of internet harassment should be recognized and was made out in this case.
In determining the elements of the tort of online harassment, Justice Corbett drew on American judicial authority to define the same: 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, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffers such harm.” Justice Corbett concluded that the facts of the Caplan case satisfied these elements.
As a remedy for the defendant’s conduct, Justice Corbett ordered a permanent injunction barring her from any and all internet communications with respect to all her victims. He also vested title in all postings to the plaintiffs, with ancillary orders to have the content removed. The plaintiffs were entitled to enforce the injunction even where the harassing conduct was directed against a third party for the purpose of harassing a plaintiff.
Implications
This case is a significant advancement in judicial regulation of online conduct and provides new protections for victims of online harassment. While not an employment law decision, this advancement may also provide aggrieved employees and former employees with a new way to seek additional remedies in the alternative to claiming intentional infliction of mental suffering and defamation, and alongside allegations of constructive dismissal and bad faith discharge. The benefit for employers is that the test establishes a high threshold to meet, however given how much communication and interaction occurs online, it is yet to be seen if less egregious conduct will also establish the tort.
For now, this case is unlikely to face appellate review. Justice Corbett noted that the defendant faced financial ruin as a result these proceedings, and had declared bankruptcy in an effort to avoid judgment. Accordingly, it is likely this decision will stand until another proceeding provides the Court of Appeal for Ontario with the opportunity for appellate review of the tort of online harassment.
If you or your business is facing a harassment claim or has experienced harassment in connection to an employment law matter, please reach out to one of Dentons’ Labour and Employment team members.
[1] 2019 ONCA 205 [Merrifield].
[2] 2021 ONSC 670 [Caplan].
