Following up on our previous blog in which we advise that the Ontario Court of Appeal decided that there is no common law tort of harassment, the Ontario Superior Court of Justice has now recognized the new tort of online harassment.
In the recent decision, Caplan v. Atas, 2021 ONSC 670 (CanLII), the court recognized the inadequacies in the current legal system’s responses to internet defamation and harassment matters.
The court opines that while defamation law and freedom of speech have created a balance in society which promotes both free democratic debate and protection of one’s reputation simultaneously, the internet has “cast that balance into disarray”.
Recognition of the New Tort of Harassment
The difficulty in the cases before the court was that the defendant was not deterred from further egregious conduct even in the face of multiple severe consequences. The defendant was also impecunious, so compensation was not a viable solution to the plaintiffs’ problems. Based on the foregoing, among other things, the court concluded that the “law’s response, thus far, has failed to respond adequately” to the defendant’s conduct.
The court points out that the “tort of internet harassment should be recognized in these cases” because the defendant’s “online conduct and publications seek not so much to defame the victims but to harass them”. As such, the court concluded that ordering the defendant “to stop harassment provides remedial breadth not available in the law of defamation”.
The Test
The plaintiffs proposed the following test, drawn from American case law, for the tort of harassment in internet communications (and which the court applied):
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.
The test sets a high bar for the emerging tort of online harassment in Ontario, and may yet not withstand the scrutiny of an appeal. However, as it stands, civil litigators now have one more tool in their toolbox for dismantling inappropriate online behaviour.
At Gilbertson Davis LLP, our lawyers can assist in matters involving the removal of defamatory and other egregious content from the internet. Our lawyers can represent you, your business, company, partnership or corporation in your dispute, whether you are the person being wronged or the alleged wrongdoer. Gilbertson Davis LLP lawyers have experience in Defamation, Internet and Technology, Civil Litigation, Business Torts and Business Litigation matters and can assist you in resolving your legal issues in a timely and cost-effective manner. Our mission is to provide creative, sensible, cost-effective, long-term resolutions to clients in their disputes. Please contact Gilbertson Davis LLP to schedule a consultation.
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