New tort of harassment recognized by Ontario Court after “Exceptional Malicious Harassment Campaign”
February 08, 2021
Bereskin & Parr LLP
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A new civil harassment in Internet communications in Ontario was recognized in a decision by the Ontario Supreme Court on January 28, 2021.
The decision in the Caplan v. Atas case (2021 ONSC 670) concerns four lawsuits against the defendant for libel, harassment and related claims. From the start of the decision, it was clear that every lawsuit was based on a number of extreme facts. The first few paragraphs described how the defendant carried out “extraordinary campaigns of malicious harassment and defamation” and how she was able, over the Internet, to “spread horrific messages across the world through multiple non-police platforms and force her victims to litigate in multiple jurisdictions to gather evidence, to entangle them, to add to their costs and to delay the judicial process “. There have been up to 150 victims of the defendant’s online harassment, which included posting defamatory content such as: For example, alleging that plaintiffs are dishonest, fraudulent, or sexual predators or pedophiles, and posting generally abusive content such as calling plaintiffs. “Twits” or “Stupid”. The defendants’ harassment extended to the children, family members and friends of their targeted campaigns.
The decision describes the defendant’s long history of not being cooperative and difficult in multiple legal proceedings. The defendant spent 74 days in jail for contempt of court and was found to be a vexatious litigator. She is also an unresolved bankruptcy administrator who is essentially making her “judgment” and not providing the remedy for compensation in these lawsuits. Against this background, the Court had two closely related objectives: a specific deterrent; and second, to prevent the accused from continuing or repeating this behavior.
The Court examined the existing custom disputes and concluded that they were insufficient to cover all aspects of the defendant’s conduct and that no remedies were available. The court found that the defendants’ conduct went beyond defamation as it was intended to harass their victims and their loved ones. With regard to the illicit act of intentionally causing mental suffering, the Court concluded that it was insufficient in these circumstances, since one element of the cause of the action is conduct that “leads to a visible and demonstrable disease” and the Court does not Evidence of this had such a disease with the remark “One would hope that the harassment of a defendant could be stopped before it had such consequences” and that “the law would also be flawed if it did not provide an effective remedy until the consequences of this Misconduct becomes visible and demonstrable illness. “Ultimately, the court concluded that the facts did not fit exactly into the tort of invasion of privacy and” seclusion “because the accused did not intrude into the plaintiff’s private affairs is. She used photos published on the Internet. It was the repeated use of these photographs in combination with false statements about the individuals that constituted the “essence of their wrongdoing”.
Following American case law, the plaintiffs had proposed a tortious act of harassment of Internet communications, which the Ontario court believed should be recognized as “harassment,” which most aptly described what the defendant had done to the plaintiffs. In addition, the ability to order the defendant to stop harassing the plaintiffs provided “a remedy not available under the Libel Act”. According to the court, the test for the illicit act of harassment in Internet communications is as follows:
- When the accused engages in malicious or reckless communication behavior that is so outrageous in character, duration and extreme extent that it goes beyond all possible limits of propriety and tolerance;
- Intended to cause fear, anxiety, emotional upset, or to question the claimant’s dignity; and
- The plaintiff suffers such damage.
With the exception of the United States, no other common law court has recognized the common law offense of harassment. In its decision, the Court refers to an earlier decision by the Ontario Supreme Court, Merrifield v. Canada (Attorney General) (2017 ONSC 1333), which appears to have recognized a common law tort of harassment in a labor law context. However, this was overturned on appeal because the Court of Appeal (i) concluded that the illicit act of intentional causing mental suffering was a sufficient remedy in the circumstances and (ii) they did not have a foreign judicial or academic authority to recognize A new tort was made available.
Although the accused himself was represented at the trial, the decision could possibly be appealed. Currently, however, the ruling is a law, however, it sets a high bar for future plaintiffs for determining this tort. The tort in this case was found due to its particularly egregious facts and the inadequacy of existing acts to address the conduct of the accused. Future decisions will need to evaluate the behavior of the parties to determine what circumstances and facts will enable that tort to be applied if it stands up to appeal.
The content of this article is intended to provide general guidance on the subject. A professional should be obtained about your particular circumstances.
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