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Originally published February 23, 2021
In Caplan v. Atas, 2021 ONSC 670, the Superior Court of Justice recently recognized a new unauthorized internet harassment. The court’s decision comes shortly after the Ontario Court of Appeals refused to recognize unlawful harassment under common law in another case. However, influenced by the proliferation of online harassment, the Court found that the existing collection of potentially available tortures does not address the unique and malicious intent of the perpetrators, nor does it respond to the harm done to their victims.
In particular, the court found that the perpetrator’s goal in this case went beyond damaging the reputation of her victims and instead focused on creating fear, anxiety and misery through repeated and ongoing posting of defamatory material on the internet. The perpetrator was also practically immune to the usual mechanisms of civil deterrence. She persisted in her best efforts in the face of court orders, disregard sentences, and significant adverse cost decisions for which she was effectively a verdict.
In recognizing the novel tort, the court recognized that while freedom of expression and the right to defamation have historically been in balance, the internet has upset that balance. Accordingly, the court recognized the new tort as a proposed solution to address the narrow circumstances in which a penniless person behind a computer, practically impervious to traditional civil claims, engages in hateful and defamatory online harassment.
The court’s decision dealt with four separate claims against the defendant, which were initiated by different groups of victims. The court’s decision gave a summary judgment in favor of the plaintiffs in three of the complaints and a default judgment in favor of the plaintiffs in the fourth complaint.
The defendant’s behavior was extreme. The defendant Atas led a systematic campaign against up to 150 victims in response to perceived grievances for more than fifteen years. Atas’ complaints arose from a number of unrelated events, including: (1) termination of employment for good cause; (2) multiple mortgage enforcement proceedings against you; and (3) a motion to declare her an annoying litigant.
In her harassment campaigns, she targeted not only those who were directly involved in the underlying complaints, but also their family members, lawyers, agents, employees and a growing circle of loved ones. Atas targeted its victims with thousands of anonymous and pseudonymous Internet posts alleging false criticism of the plaintiffs and other related persons. While the false allegations varied among victims of Atas, they included allegations of fraud, dishonesty, incompetence, unethical behavior and, in some cases, prostitution, sexual exploitation and pedophilia. She posted on various websites that have no control over the content and, in some cases, added photos of the target people she found online.
Importantly, the court struggled to find a way to curb the abusive behavior of Atas. She continued to post about the plaintiffs, even after she was prohibited by a court order, even during the ongoing proceedings. Atas remained unfazed, despite being charged with contempt and jailed for 74 days as an annoying trial attorney was declared, her own reputation was damaged by public court decisions, and over $ 250,000 in adverse cost decisions was paid. In addition, on the eve of the filings, Atas made a bankruptcy assignment, which the court deemed tactical to fend off plaintiffs’ claims for financial relief
The court found that Atas’ behavior was not properly captured by existing illicit acts
Prior to recognizing the new tort, the court specifically recognized that the appeals court recently denied another attempt to recognize bullying under common law. Specifically, in Merrifield v. Canada (Attorney General), 2019 ONCA 205, the appellate court denied it, in part because there are other applicable causes of action that applied to the conduct alleged in this case. Regardless of the rejection, however, the appellate court left open the option of recognizing harassment in other appropriate contexts
In the Atas case, the court considered the offenses of (1) defamation; (2) deliberately inflicting psychological distress; and (3) entering seclusion as potentially applicable and finding that none adequately captured the essence of Atas’ behavior.
- defamation: While the Court has held Atas liable for defamation, it has found that traditional defamation legal channels are insufficient to end the conduct or to control the offender’s future conduct. In this regard, the court found that Atas’ intention was not just to defame the plaintiffs, but to harass them. Indeed, it seemed to the court that Atas took satisfaction from the ongoing conflict
- Deliberate infliction of mental suffering: The Court found that the illicit act of intentional causing psychological distress was a different matter than the case in the Bar. The constituent elements of this unlawful act require the plaintiff to provide evidence of a visible and verifiable illness resulting from the defendant’s behavior. The court found that plaintiffs should have the opportunity to end ongoing and repetitive online harassment before such harm occurs
- Penetrating the seclusion: The court found that the previously recognized illicit interference in seclusion did not address Atas ‘behavior in this case as it did not invade plaintiffs’ privacy. Instead, she tried to harm her victims by posting false statements about them on the internet
The new tort of internet harassment
Given the court’s finding that existing illicit acts did not properly address Atas’ conduct or redress the harm suffered by their victims, it recognized the new illicit act of online harassment.
The court adopted the legal test for harassment in Internet communications from American case law. To establish liability, a plaintiff must demonstrate the following:
- the accused maliciously or recklessly engages in communication behavior which is so monstrous in character, duration and extent that all possible limits of decency and tolerance are exceeded;
- the defendant intends to cause fear, anxiety, emotional upset, or to harm the claimant’s dignity; and
- the claimant suffers such damage. 6
The court found that Atas’ behavior met this criterion. However, the court pointed out that this is a “rigorous” test, suggesting that it is supposed to have narrow application. In particular, the court took care to distinguish Atas’ behavior from other online behavior that is merely intended to upset another person. Rather, only the most serious and persistent harassing behavior reaches the level required to establish liability. 7
Scope of remedial action
As noted above, On the eve of the filings, Atas made a bankruptcy assignment and plaintiffs responded by waiving their financial claims so the filing could go ahead as planned. Accordingly, the plaintiffs requested an injunction prohibiting Atas from being published on the Internet, a public apology, and the removal of the offending posts from the Internet.
The court granted the injunction without further ado. In this regard, it found that: (1) it was likely that Atas would continue to post defamatory statements and (2) there was no way plaintiffs would receive compensation from her. As such, the Atas Court permanently prohibited any distribution, publication, communication or publication on the Internet in relation to the plaintiffs together with their families, close persons and business partners
The court declined to order Atas to apologize or delete the disputes, in part because of practical difficulties in enforcing such an order.9 Instead, the court gave plaintiffs ownership of the positions and indicated that ancillary orders were required to take the steps to have the content removed. 10
Importance of the decision
The Atas case is another example of courts finding it difficult to apply traditional legal principles to abuse on the Internet. In such cases, courts seem increasingly willing to invent new pleas to censure wrongdoing when traditional pleas either do not exist or cannot deter such conduct.
Given its proximity to the Merrifield Court of Appeal decision, it will be interesting to see if the decision stands up to appeal. It is important to note, however, that atas, because of their designation as an annoying party to the litigation, requires approval of the decision. Even if the decision stands, it is uncertain to what extent and under what circumstances courts will be willing to hold defendants liable for online harassment. It is likely that courts will only use the new tort if defendants display similar levels of persistent malicious behavior and similarly are not deterred by traditional civil proceedings.
1. Caplan versus Atas, 2021 ONSC 670 and margin no. 27.
2. Merrifield v Canada (Attorney General), 2019 ONCA 205, paras 40-43, 53.
3. Caplan versus Atas, 2021 ONSC 670, paras. 73, 93, 104, 168.
4. Caplan versus Atas, 2021 ONSC 670 and marginal number 169-170.
5. Caplan versus Atas, 2021 ONSC 670 and marginal numbers 176-177.
6. Caplan versus Atas, 2021 ONSC 670 and marginal number 171.
7. Caplan versus Atas, 2021 ONSC 670, paras. 172, 174.
8. Caplan versus Atas, 2021 ONSC 670, para. 218, 220.
9. Caplan versus Atas, 2021 ONSC 670 and marginal number 221-225.
10. Caplan v Atas, 2021 ONSC 670 and para. 228
The foregoing is an overview only and does not constitute legal advice. Readers are cautioned not to base their decisions on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2021