The New Tort Of Harassment In Cyber-Stalking Case – Employment and HR

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Waiver Of Tort Is Dead, Long Live Waiver Of Tort! - Corporate/Commercial Law

A judge of the Ontario Superior Court of Justice has recognized
a new common law tort of harassment. As recently as 2019, the
Ontario Court of Appeal declined to recognize the existence of a
tort of harassment in Canadian law.

In his recently released decision in Caplan v.
Atas, 2021 ONSC 670, Justice Corbett held that the
extreme circumstances of the case before him nevertheless warranted
the recognition of this new tort, as the most appropriate redress
for the behaviour at issue.

Facts of the Case

This case concerned a campaign of malicious harassment and
defamation by the defendant Atas against a number of individuals
that occurred over the course of decades.

Through behaviour described by the judge as
“sociopathic” and motivated by “serious mental
illness”, the defendant made numerous communications and
online publications attacking and defaming individuals involved in
a dispute the defendant had with a former employer, as well as
individuals involved in two mortgage disputes involving the
defendant.

The plaintiffs are the victims of the defendant’s
harassment, and had commenced several related actions against the
defendant for monetary damages, as well as declaratory and
injunctive relief.

Over the years, the plaintiffs in these related proceedings have
obtained interlocutory injunctions requiring the defendant to cease
making internet posts about them. The defendant would then begin
attacking friends, relatives, and other associates of these
plaintiffs, in order to indirectly attack her primary targets. The
plaintiff has been jailed due to violations of various
interlocutory orders and contempt of court, but still her behaviour
continued.

The harassing internet posts were largely posted anonymously and
were quite extreme. For example, one of the defendant’s victims
was the brother of one of her primary targets, who was a doctor
living in New Mexico. The defendant created elaborate internet
posts suggesting that this doctor was a pedophile and child
pornographer.

This harassment continued for some time before the victim
discovered the connection between the author of these posts and his
brother, which enabled him to identify the defendant as the
perpetrator.

The plaintiffs in the related actions were able to amass
substantial evidence demonstrating that the defendant published or
caused to be published the harassing internet posts, and brought
summary judgment motions against the defendant. Rather than
responding to the motions, the defendant assigned in bankruptcy
thinking that the automatic stay of proceedings that accompanies
bankruptcy would halt the motions.

In response, the plaintiffs withdrew their claims for monetary
damages and costs (the defendant was impecunious in any event).
Justice Corbett held that the motions for judgment could proceed
without the need for an order to continue, given that the stay
arising from the defendant’s assignment in bankruptcy was
intended to protect the defendant’s creditors’ interests,
which would not be affected by the injunctive or declaratory relief
sought, and the defendant’s trustee in bankruptcy did not
object to the proceedings continuing on this basis.

The Defamation Ruling

Justice Corbett found that the plaintiffs had established that
the defendant had published or caused to be published the impugned
internet posts, all of which were false. His Honour then turned to
consideration of the appropriate remedy for the defendant’s
conduct.

The plaintiffs had framed their actions in defamatory libel,
common law harassment, and private nuisance. Justice Corbett first
considered the defendant’s actions as acts of defamation. He
concluded that many of the thousands of postings published by the
defendant are defamatory to the plaintiffs.

However, His Honour noted that some of the posts do not
communicate facts, but are just purely abusive comments meant to
convey only the poster’s dislike for the subject. His Honour
concluded that such posts cannot be defamatory, since they cannot
be said to be either true or false, but they can be considered as
part of a pattern of harassment.

In any event, Justice Corbett accepted that the defendant
published or caused to be published the defamatory posts, and that
the defendant had failed to establish any defence for the
defamatory publications. Accordingly, he held that the tort of
defamation had been established in this case.

The Harassment Ruling

Justice Corbett next considered whether this was an appropriate
case in which to recognize a new common law tort of harassment. He
determined that it was.

In reaching this conclusion, Justice Corbett distinguished the
relatively recent decision of the Ontario Court of Appeal in
Merrifield v. Canada (Attorney General), 2019 ONCA 205, in
which the Court of Appeal had declined to recognize a tort of
harassment.

In Merrifield, which involved allegations of harassment
by RCMP officers, the trial judge had recognized the availability
of the tort of harassment at common law, and had granted judgment
to the plaintiff on that basis. The Court of Appeal held that the
trial judge had erred in recognizing a common law tort of
harassment in the circumstances of that case.

The Court of Appeal’s reasons for rejecting a tort of
harassment in Merrifield were two-fold. First, the Court
noted that changes to the common law such as the recognition of a
new tort should be slow and gradual, and should arise from prior
developments in the jurisprudence.

The Court of Appeal reviewed the Canadian jurisprudence and
concluded that there is no real authority supporting the existence
of a tort of harassment in Ontario. The Court further noted that it
had not been provided with any foreign or academic authority, or
compelling policy rationale, that would support the recognition of
a new tort of harassment either.

Second, the Court of Appeal stated that there were other legal
remedies available to address the same conduct that the plaintiff
argued constituted harassment in that case. Specifically, the Court
held that the tort of intentional infliction of mental suffering
was applicable and appropriate to address the conduct complained of
by the plaintiff.

The Court further noted that the elements of the tort of
harassment proposed by the trial judge were very similar to the
elements of intentional infliction of mental suffering, but that
they were easier to make out.

The Court of Appeal accordingly concluded that the plaintiff had
not presented a compelling reason to recognize a new tort of
harassment in that case. However, the Court did not foreclose the
development of a tort of harassment in the appropriate context.

In Caplan, Justice Corbett attempted to distinguish the
Court of Appeal’s decision in Merrifield in a number
of ways. First, he considered authorities from other jurisdictions,
including the US, England, Manitoba, and Nova Scotia, relating to
the availability of the tort of harassment. He also considered
academic studies on the prevalence and effect of cyber bullying and
online harassment.

His Honour also distinguished Merrifield on the facts
of the case. In this case, he noted, there was no evidence before
him to suggest that the plaintiffs had suffered a visible and
provable illness as a result of the defendant’s conduct, which
is a required element of the tort of intentional infliction of
mental suffering that the Court of Appeal in Merrifield
had held to be a suitable cause of action for that case. His Honour
stated, however, that the law would be deficient if it did not
provide a remedy until the consequences of the defendant’s
wrongful conduct caused a visible and provable illness.

Finally, Justice Corbett adopted a stringent test for harassment
drawn from American caselaw: “where the defendant maliciously
or recklessly engages in communications conduct so outrageous in
character, duration, and extreme in degree, so as to go beyond all
possible bounds of decency and tolerance, with the intent to cause
fear, anxiety, emotional upset or to impugn the dignity of the
plaintiff, and the plaintiff suffers such harm.”

His Honour noted that only the most serious and persistent
harassing conduct rises to the level where the law should respond
to it, but felt the case before him fit that description.

Remedies Ordered

Justice Corbett provided the plaintiffs with a variety of
relief, including a permanent injunction barring the defendant from
publishing or posting online anything relating to the plaintiffs
and other victims of the defendant’s harassment, as well as
their families, relatives, and business associates. His Honour
stated that he would have seriously considered permanently banning
the defendant from posting anything at all online, had he been
asked to do so.

His Honour also ordered that the defendant’s ownership of
the impugned postings and the internet accounts associated with
them be permanently transferred to the plaintiffs, so that they can
remove them.

Impact of Decision

Following the decision in Caplan v. Atas, the tort of
harassment may be available as a cause of action in Ontario.
However, it remains to be seen whether the Court of Appeal will
accept Justice Corbett’s reasons for recognizing this new tort,
whether on appeal from this case or in future decisions.

One issue the Court of Appeal might take with Justice
Corbett’s decision is that while he explained why the tort of
intentional infliction of mental suffering was not applicable to
the case before him, as it had been in Merrifield, it is
not immediately evident in his decision why the tort of defamation
was not sufficient to provide redress for the defendant’s
conduct.

Justice Corbett’s justification for recognizing a tort of
harassment, rather than just relying on defamation, was that the
defendant’s conduct was not aimed at defaming the plaintiffs so
much as at harassing them, and the defamatory publications were
just the means to that end. However, His Honour did find that the
tort of defamation had been made out in this case, and much of the
authority he relied on in providing remedies to the plaintiffs was
authority from the defamation context.

Given the Court of Appeal’s comments in Merrifield
to the effect that the courts should be slow to recognize new
torts, particularly where existing torts provide adequate redress,
one wonders whether they will agree that recognition of a new tort
was necessary in this case.

To extend the reasoning in Merrifield, the Court of
Appeal might find that while intentional infliction of mental
suffering already covers off many of the same situations as a tort
of harassment would, the tort of defamation is available to cover
those situations in which the harassment involves defamatory
publications, but has not caused any illness.

Such reasoning might, of course, leave prospective plaintiffs
who are being harassed, but not through the use of defamatory
statements or publications, and not to an extent that it has caused
them a visible and provable illness, without a cause of action or
remedy. However, it is not immediately obvious that such a
situation should necessarily entitle one to a civil remedy.

Tort law is usually concerned with remedies to address legally
compensable damages sustained by a plaintiff as a result of a
defendant’s conduct. In cases of infliction of injury, whether
physical or psychological, it is the injury that is compensable. In
cases of defamation, it is the reputational damage that is
compensable.

However, in a case where a defendant is merely bothering the
plaintiff, but has caused neither injury nor reputational damage,
it is not clear what damages the law should seek to redress. 
This is an apparent problem with the tort of harassment as
formulated by Justice Corbett.

In this case, Justice Corbett seems to have identified the
damages to be compensated in the test he adopted for the tort of
harassment: “where the defendant maliciously or recklessly
engages in communications conduct so outrageous in character,
duration, and extreme in degree, so as to go beyond all possible
bounds of decency and tolerance, with the intent to cause fear,
anxiety, emotional upset or to impugn the dignity of the plaintiff,
and the plaintiff suffers such harm.” (emphasis
added).

However, if the damages flow from fear, anxiety, or emotional
upset caused by the defendant’s intentional conduct, and rises
to a compensable level (as outlined by the Supreme Court of Canada
in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27), then
the tort of intentional infliction of intentional injuries will
have been made out. If the damages flow from the plaintiff’s
impugned dignity, then presumably defamation will have been made
out. It is accordingly somewhat unclear what is added by this new
tort.

In any event, it will be very interesting to see how the Court
of Appeal next tackles this developing tort.

Rogers Partners LLP is an experienced civil litigation firm in
Toronto, Ontario. The firm represents insurers and self-insured
companies in numerous areas, including motor vehicle negligence,
occupiers’ liability, product liability, professional
negligence, construction claims, statutory accident benefits,
disability benefits, municipal liability, medical negligence,
sexual abuse, and insurance coverage disputes.

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