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Regardless of the social media guidelines that raise expectations about employee behavior online, online harassment is still a widespread problem in the workplace and in society at large. In a lengthy ruling, Caplan v. Atas, 2021 ONSC 670 (Caplan v. Atas), the Ontario Court of Justice recognized a new unlawful Internet harassment offense that can provide recourse and remedies to employers (and others) who are harassed, bullied and / or stalked on the internet.
The decision came in response to three summary judgment motions and one default judgment motion filed by plaintiffs in four lawsuits, all of which related to each defendant’s cyber harassment. Judge Corbett aptly described the facts of the case:
These cases concern exceptional campaigns of malicious harassment and defamation that have been carried out in an uncontrolled manner over many years as an unlawful retaliation. [The defendant], has used the Internet to spread malicious untruths against those she holds grudges against, as well as family members and employees of those she holds grudges against. [The defendant] is penniless and apparently content to indulge in old grievances, enjoys trials and endless conflict over the misery and costs they cause to their adversaries.
Cyber stalking is the perfect pastime for [the defendant]. She can protect her identity. It can spread hideous news across the world across multiple uncontrolled platforms, forcing its victims to go to trial in multiple jurisdictions to gather evidence accusing them, which increases its costs and delays the trial of justice. Unimpressed by the principles of decency, she turns her focus on her siblings, children, other family members and partners in an expanding web of angry and harassing behaviors when she is banned from attacking named plaintiffs.
In the course of her campaign, the defendant harassed around 150 people on the Internet, including a former employer, his successor, owners, managers and employees. Her claims that her targets were sex offenders, pedophiles, or professional misconduct were untrue. In response to the defendants’ lawsuits, the plaintiffs (individuals related to mortgage enforcement proceedings against the defendant and a former employer) sued for defamation and harassment; They argued that, given the defendants’ malicious behavior, a mere determination of libel was insufficient and argued before the court that they were also responsible for the unauthorized internet harassment existing in the United States.
The court concluded that the defendants undoubtedly defamed the plaintiffs; however, it ruled that the legal remedies available for a defamation lawsuit were insufficient to end their harassment. The court concluded that the common law tort of online harassment should be recognized in order to address the defendant’s online conduct and publications, which went beyond defamation and which the court identified as:
… not so much to defame the victims as to harass them. In other words, the intent is to go beyond character assassination: it is intended to harass, harass, and harass, through repeated and ongoing releases of defamatory material, not just from major victims, but additionally incriminate these victims by imposing on Targeting people who are important to them to cause fear, anxiety, and misery. The social science literature … makes it clear that serial stalkers such as [the defendant]. (Para. 168)
The court found that the facts met the following rigorous test for unauthorized harassment in Internet communications, which it derived from American case law:
… the accused maliciously or recklessly engages in communication behavior of such monstrous character, duration and extreme proportions as to cross all possible limits of propriety and tolerance with the intention of contesting fear, anxiety, emotional excitement or the dignity of the claimant and the plaintiff suffers such damage. (Para. 171)
The court granted the following remedies:
- An injunction prohibiting Defendants from harassing plaintiffs and any “other victims of their defamation and harassment along with their families and loved ones and business associates” (ie non-parties to the dispute);
- A title granted in Plaintiffs’ postings with side orders that will allow Plaintiffs to take steps to remove the content from the Internet; and
- A supplemental factual finding that Defendants’ publications were inaccurate, which plaintiffs requested because such a finding was necessary for the removal of the posts in some jurisdictions in the United States.
Since the defendant “was penniless, lives in emergency accommodation, has no property other than the clothes on her back and a cell phone and is an unpaid bankruptcy estate” (paragraph 93), the plaintiffs have withdrawn their pecuniary claims on the cost side as well.
The Court in Caplan v. Atas has recognized that the Ontario Court of Appeal (OCA) overturned the Court of First Instance ruling in Merrifield v. Attorney General, 2017 ONSC 1333 (Merrifield), Recognizing Unlawful Unauthorized Harassment, as discussed herein. However, the court found that the OCA did not rule out the possibility that unauthorized harassment could develop in the future. The court also distinguished the facts in Caplan v. Atas from those in Merrifield, stating that they were much closer to the situation in which the OCA recognized the illicit interference in the seclusion at Jones v. Tsige, 2012 ONCA 32, an unauthorized harassment on the internet due to the inadequacy of the law to deal with the defendant’s conduct. With the finding that the United States recognized such a tort, and although the Law Reform Commission of Ontario (LCO) had carried out a full review of the Objectionable Internet Content Act, Ontario lacked appropriate legislation to deal with conduct such as the Defendants deal exists in England, Manitoba and Nova Scotia. Nevertheless, the court, like the LCO, admitted: “It would be better if changes in this area of law came from the legislature rather than from a trial judge.” (Para. 173)
Conclusion for employers
The new common law tort of harassment on the internet may allow individuals (including employers) harassed online by employees, former employees, or others to obtain practical remedies such as those described above, as well as remedies that may arise in the circumstances of. were inappropriate in this case due to the defendant’s poverty, severe mental illness, lack of credibility and history of non-compliance with court orders. While the introduction of the internet harassment common law offense is a welcome development, given how often the internet is used by individuals to maliciously and ruthlessly harass and prosecute others online, it would be the creation of laws to combat it Such behavior is a welcome next step, as the court emphasized in this case.
Given the background of the defendants, it would not be surprising if they tried to appeal this decision; However, since she has been declared a harassing plaintiff, she can only appeal if the Superior Court gives her permission. In the event of a leave of absence, we will report on the OCA’s response to the Superior Court’s decision.
Originally published by Littler Mendelson, March 2021
The content of this article is intended to provide general guidance on the subject. Expert advice should be sought regarding your specific circumstances.
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