This Div is a JS Trigger
Issue 67 | January 2021

LIANSWERS

This newsletter includes information to help lawyers reduce the likelihood of being sued for malpractice. The material presented is not intended to establish, report, or create the standard of care for lawyers. The articles do not represent a complete analysis of the topics presented, and readers should conduct their own appropriate legal research.
Tort of Online Harassment

In the recently released decision of Caplan v. Atas, 2021 ONSC 670, the Ontario Supreme Court recognized, as a new tort, online harassment.

After doing a jurisdictional scan of the law in other jurisdictions, including specific reference to subsections 3(c) and 6(1) of Nova Scotia’s Intimate Images and Cyber-Protection Act, the Court stated at paragraph 104:

As should be clear from this brief review, this is a developing area of the law. The law of defamation provides some recourse for the targets of this kind of conduct, but that recourse is not sufficient to bring the conduct to an end or to control the behaviour of the wrongdoer. The reasons that follow explain this conclusion, which provides a foundation for this court’s conclusion that the common law tort of harassment should be recognized in Ontario. “Harassment” describes what Atas has been doing, and ordering Atas to stop harassment provides remedial breadth not available in the law of defamation.

As a test, the Court stated at paragraph 171:

The plaintiffs propose, drawn from American case law the following test for the tort of harassment in internet communications: 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.

and concluded that the facts in the case met the test.

The Court ended its discussion on this issue as follows:

[174] However, the facts of the case before me are very different from the facts in Merrifield. They are much closer to the situation in which the Court of Appeal recognized the tort of intrusion on seclusion, Jones v. Tsige, in which Sharpe J.A. stated: ““we are presented in this case with facts that cry out for a remedy”. As I said at the outset, the law’s response to Atas’ conduct has not been sufficient, and traditional remedies available in defamation law are not sufficient to address all aspects of Atas’ conduct. Harassment, as a concept, is recognized in the criminal law. It is well understood in the context of family law. In the Judgment I considered making a non-harassment order and rejected it because it had not been requested by the applicants. The concept of “harassment” as wrongful conduct is known to the law and is a social ill. The concern, of course, on the other side of the question, is that people are not always on their best behaviour, and not all, or perhaps even most, conduct intended to annoy another person should be of concern to the law. It is only the most serious and persistent of harassing conduct that rises to a level where the law should respond to it.

[175] The facts of these cases fit within that description.