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 Caplan against Atas (2021 ONSC 670) concerns four lawsuits against a person named Nadire Atas (“Atas”) for defamation, harassment and related claims. From the start of the decision, it was clear that each 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, claiming 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. Atas spent 74 days in jail for disobeying the court and was found to be an angry trial lawyer. She is also an unsolved insolvency administrator who is essentially making her judgment “judgmental” and not providing the compensation in these litigation. Against this background, the Court had two closely related objectives: a specific deterrent; and second, to prevent atas 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 Atas’ conduct went beyond defamation as it was intended to harass her victims and their loved ones. With regard to the illicit act of willful causing mental suffering, the Court concluded that it was insufficient in these circumstances, since one element of the cause of the action is conduct which “leads to a visible and demonstrable disease” and the Court found it had no evidence. Such a disease states, “One would hope that harassment of a defendant can be stopped before it has such consequences.” and that “the law would also be flawed if it did not provide effective relief until the Consequences of this wrongdoing become visible and provable illness. “Ultimately, the court concluded that the facts did not exactly fit into the tort of invasion of privacy and” seclusion “since Atas did not intrude into the plaintiff’s private affairs. She had photos posted on the Internet It was the repeated use of these photographs in combination with false statements about the individuals who constituted the “essence of their wrongdoing”.
Based on American case law, plaintiffs had proposed an act of harassment of Internet communications which the Ontario court believed should be recognized as “harassment,” which most accurately described what Atas had done to plaintiffs. In addition, the ability to order Atas to stop harassing the plaintiffs was “a remedy not available under the Defamation 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 unlawful act of harassment in a labor law context. However, this was overturned on appeal because the Court of Appeal (i) concluded that the tort of willful causing mental suffering was a sufficient remedy in the circumstances and (ii) there was no foreign judicial or academic authority to recognize them 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 to detect this tort. The tort in this case was identified due to its particularly egregious facts and the inadequacy of existing measures to combat the behavior of Atas. Future decisions must evaluate the behavior of the parties to determine what circumstances and facts enable that tort to be used if it stands up to appeal.