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Ontario Superior Court docket acknowledges new tort for on-line harassment

In its most recent ruling in Caplan v Atas, ONSC 670, 2021, the Ontario Supreme Court recognized a new tort of “Internet communications harassment” in response to a defendant’s nearly 20-year campaign aimed at the “harass, molest and harass” plaintiffs through online posts.

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The decision closed four lawsuits against the defendant Nadire Atas, brought by targets of her year-long campaign against online harassment and defamation. Plaintiffs in the four lawsuits included attorneys who were involved in mortgage enforcement and other litigation against them; a former employer and his successor company; and family members and employees of the primary goals.

Plaintiffs alleged that the defendant posted extensive defamatory material online, including allegations of professional misconduct, fraud and sexual crime, some of which spanned nearly 20 years. Plaintiffs provided evidence of 3,747 online posts on 77 websites against 150 victims, as well as evidence that the defendant hired a sex worker to post defamatory content.

The claims in each of the four lawsuits relied on defamatory defamation as a cause of action, and two actions also relied on common law “harassment” and “personal harassment”. The lawsuits were before the court as three summary judgments and one motion for default judgment. The defendant, an experienced, self-represented trial attorney, had been designated as an “annoying trial attorney” under Section 140 of the Courts of Justice Act. During these four cases, she failed to submit response materials, violated various other procedural orders, and spent 74 days in prison as a result for despising the court.

Decision and recognition of unlawful acts in the case of harassment in Internet communication

The court ruled that the content of many of the thousands of postings defamed the plaintiffs, their families and their employees. In response, the defendant put forward two arguments: first, that the defamation claims were excluded because of failure to comply with the deadline and notification requirements of the Defamation and Defamation Act; and second, the defense of justification. The Court was not satisfied that either defense was applicable.

Most of the plaintiffs’ actions were based on defamation. However, the court found that traditional appeals against the Defamation Act were insufficient to cover all aspects of the defendant’s conduct and ruled that the illicit act of online harassment should be recognized. The court passed the American “rigorous” test for the illicit act of harassment in Internet communications and required evidence that:

(1) The accused is maliciously or recklessly involved in communication behavior that is so outrageous in character, duration and extreme extent that it transcends all possible limits of propriety and tolerance.

(2) They were intended to cause fear, anxiety, emotional upset, or to question the plaintiff’s dignity.

(3) And that the plaintiff suffered such damage as a result.

In recognizing the new tort, the court distinguished these cases from the Court of Appeal’s decision in Merrifield v Canada (Attorney General). In Merrifield, the trial judge ruled an unlawful act of harassment in an employment context, but the appeals court overturned the trial decision. The appeals court concluded that:

(1) The illicit act of deliberately inflicting mental suffering was a sufficient means under the circumstances; and

(2) There were insufficient foreign judicial authorities, academic authorities, or compelling political reasons to recognize a new tort.

While recognizing the appeals court’s reluctance to recognize new offenses, the court distinguished Merrifield from the cases examined. First, the court found that the illicit act of intentional causing mental suffering was an inadequate remedy as there was no evidence that the plaintiffs had suffered “visible and demonstrable illnesses” as was necessary to establish that illicit act. Second, the Court examined the law in other jurisdictions, the Law Commission of Ontario’s investigation into defamation of the Internet, and studies of the extent and devastating effects of cyber-harassment, and found that the cases in question “[cried] looking for a cure. “

Remedies

Plaintiffs abandoned all funds because the defendant was insolvent and instead sought permanent injunctions and an apology. The court declined to order an apology but issued an injunction preventing the defendants from reporting on the plaintiffs, their family members and their business associates online. The court also agreed to transfer ownership of plaintiffs ‘(or their agents’) existing postings so that they can take steps to remove the content.

Takeaways

This case is relevant to the recognition of a new tort in Ontario, the tort of harassment in Internet communications. The court accepted the American “rigorous” test for the illicit act mentioned above.

While the court found the proliferation of online harassment and the risks involved, future cases are likely to examine the limits of the tort, given the extreme nature and duration of the defendant’s conduct setting a high precedent.

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