*Since the writing of this blog this decision was not overturned (Leave to appeal dismissed by Supreme Court of Canada).

First year law students are introduced to the concept of the law as a living tree but with the technological changes, it may feel more akin to Jack’s magic beanstalk.  With the world and technology changed exponentially, it is only natural that the law is similarly expanding at new rates. 

The expansions are occurring despite the generally slow, incremental changes in common law. The Courts often caution against dramatic changes in the law. The Supreme Court has held that significant changes are best left to the legislature rather than the Courts.[1]  However, it seems we are reaching a tipping point.

It was only two years ago, the Ontario Court of Appeal rejected the tort of harassment.[2] In Merrifeld v Canada, the plaintiff brought a suit, including claims of harassment and bullying by colleagues and superiors at the RCMP.  The trial judge had allowed and recognized the tort of harassment in additional to intentional infliction of mental suffering. The Court of Appeal found that there was no precedent in which a Canadian appellate court considered the tort of harassment. However, the Court concluded:

In summary, while we do not foreclose the development of a properly conceived tort of harassment that might apply in appropriate contexts, we conclude that Merrifield has presented no compelling reason to recognize a new tort of harassment in this case.[3]

However, internet harassment is a different breed than generalized harassment, or so it seems, where it has been a frequent topic in recent jurisprudence with at least eight Canadian courts considering the tort since 2019.[4]  One case, which did not recognize internet harassment as a tort per se, found that in that the defendant husband’s actions, including filming and publishing private meetings with his children, met the definition of intention inflicting of mental suffering and invasion of privacy.[5]

In Caplan v Atas, at a summary judgement motion, Justice Corbett distinguished Merrifeld noting the longstanding and egregious campaign of cyberstalking, malicious harassment and defamation the defendant has wrought on various groups of people over decades.[6] The Court identified at least 150 people who had suffered at the hands of the self-represented defendant. He opined that serious mental illness must underly the defendant’s behavior given the serious consequences decades of litigation wreaked on her life (including imprisonment for contempt of court!).  In the within four actions alone, there had been over 45 endorsements over the course of litigation.

In Caplan, Justice Corbett provided a detailed and careful analysis of the law of defamation, harassment and intentional infliction of mental suffering. He noted that while freedom of speech and the law of defamation developed and balanced over centuries, the “internet has cast that balance into disarray.”[7] He recognized a gap in the legal response to internet defamation and harassment.[8]  Online harassment, bullying, hate speech and cyberstalking straddle civil and criminal law and remedies but the Courts have been challenged to recognize new torts or expand pre-existing ones in light of the internet.[9]

Other jurisdictions have begun to recognize the need to regulate and recognize harmful internet communications. In 1997, England passed the Protection from Harassment Act 1997, which created civil remedies. Australia followed suit and in 2014, a statutory civil remedy for harassment was recommended. The following year New Zealand passed the Harmful Digital Communications Act which created an agency to administer complaints and apply remedies.  In 2018, Novia Scotia re-introduced the Intimate Images and Cyber-Protection Act which provided remedies and consequences for cyber-bullying or the distribution of intimate images without consent.

In November 2017, the Law Reform Commission of Ontario began the process of publishing papers on the subject before issuing a final report on Defamation Law in the Internet Age in March 2020.[10] However, the Ontario legislature has yet to enact any laws to address the issue.

Justice Corbett noted this is a developing area of law and acknowledged that while defamation could provide some recourse, it was not sufficient to bring the conduct to an end or control the behavior of the wrong-doer. This will problem will only worsen with online harassment growing.

In particular, Justice Corbett noted that internet harassment ought to be recognized as a tort because the defendant was not seeking to defame as much as harass the plaintiffs. Yet, the tort of intentional infliction of mental suffering was also not appropriate as it was designed to address different situations. Justice Corbett found that a visible and provable illness ought not to be a requirement of harassment. He held the law would be “deficient if it did not provide an efficient remedy until the consequences of this wrongful conduct caused visible and provable illness.”[11] 

The test, drawn from American jurisprudence, lays out the requisite elements of the tort of internet harassment:

  1. the defendant maliciously or recklessly engages in communications conduct so outrageous in character, duration and extreme in degree;
  2. 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,
  3. the plaintiff suffers such harm

The decision also makes clear that the remedies available are complicated in the case of internet harassment. It goes beyond mere damages but an attempt to try and rectify the situation, such as removing the offensive content.

Take Away

The jurisprudence is not consistent with respect to the tort of internet harassment but the Courts are clear that something ought to be done and plaintiffs ought to have remedy and damages available to them when enduring behaviour that would constitute harassment.  Different courts have found different solutions to the same problem.

While the Ontario Court of Appeal rejected the need for the tort of internet harassment, Justice Corbett disagreed. In his lengthy and considered decision, Caplan, he made salient points about why pre-existing torts did not adequately address internet harassment.

As such, the application of the tort of internet harassment is still unknown. Justice Vallee recognized the tort in her trial decision in 2017 but it was overturned by the Court of Appeal two years later. The defendant in Caplan, who has been deemed a vexatious litigant, may be planning an appeal. However, the Court of Appeal may not be so quick to dismiss the tort of internet harassment given the intervening jurisprudence, facts, and legislation in other jurisdictions.

Shannon Wood is an associate at the firm, and author of this blog. If you have a question about this decision or a file involving the tort of internet harassment, please contact Shannon at 647-427-3362

[1] Watkins v. Olafson1989 CanLII 36 (SCC)

[2] Merrifield v. Canada (Attorney General), 2019 ONCA 205

[3] Ibid at 35.

[4] Yenovkian v. Gulian, 2019 ONSC 7279, Hategan v. Farber, 2021 ONSC 874, Pinkerton v Victoria Saanich Canadian Dressage Owners and Riders Society, 2020 BCSC 1838, Bacchus v. Munn, 2020 ONSC 6650, Kumar v. Khurana, 2019 ONSC 6825 and Sagos v. Canada (Attorney General), 2019 ONSC 5661

[5] Yenovkian v. Gulian, 2019 ONSC 7279

[6] Caplan v. Atas, 2021 ONSC 67

[7] Ibid at 4-5

[8] Ibid at 93

[9] Ibid at 99

[10] Law Commission of Ontario, Defamation Law in the Internet Age: Final Report (Toronto: March 2020)

[11] Caplan v. Atas, 2021 ONSC 67 at 168-170