In Caplan v Atas, the Ontario Superior Court recognized a new common law tort of internet harassment in response to an individual's "extraordinary" campaigns of cyber-stalking, harassment, and defamation.
The decision arose in the context of four defamation actions against the defendant. The plaintiffs were a wide-ranging group of individuals and organizations that had been targeted by the defendant, including lawyers that acted against her in past mortgage enforcement proceedings and her former employer, who had terminated her employment decades earlier. The plaintiffs sought summary judgment against the defendant, alleging defamatory libel, harassment, and nuisance.
The plaintiffs had tens of thousands of pages of evidence of the defendant's conduct, which spanned nearly two decades. In short, the defendant carried out "systemic campaigns of malicious falsehood" by making anonymous and pseudonymous posts on platforms such as Pinterest, Reddit, and Facebook. The court concluded that these posts, which made unsupported allegations of pedophilia and sexual predation among other things, were aimed at causing emotional and psychological harm to her adversaries.
The defendant also had a long history of launching repetitive lawsuits and defying court orders, culminating in her designation as a "vexatious litigant" under section 140 of the Courts of Justice Act.
The tort of internet harassment
Before recognizing the new tort, the court first considered the existing common law torts and concluded that none sufficiently addressed the defendant's conduct. For example, while defamation provided some recourse, it was not sufficient to end the conduct or control the behaviour.
Drawing from American case law, the court adopted a "stringent" three-step test to establish the tort of harassment in internet communications:
- 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;
- the defendant intends to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and
- the plaintiff suffers such harm.
The court cautioned that conduct intended to annoy would not meet this test; the tort is reserved for only the most "serious and persistent of harassing conduct."
After finding that the stringent test was satisfied in this case, the court granted a permanent injunction preventing the defendant (in her own name or any name) from posting about the plaintiffs, their families, and their business associates on the internet. Given that the defendant frequently refused to follow court orders, the court vested title in the existing posts to the plaintiffs, so they could take the necessary steps to have the content removed from the internet.
What about Merrifield?
We previously reported on the 2019 decision of Merrifield v Canada (Attorney General),1 in which the Ontario Court of Appeal refused to recognize a new common law tort of harassment in the employment context. The court distinguished Merrifield for a number of reasons, including that the facts of this case "cried out for a remedy," the issue had been under active recent consideration by the Law Commission of Ontario, and the traditional remedies and causes of action available were not sufficient to address the conduct at issue.
While recognizing this new tort is a significant development in the common law, its applicability remains to be seen. The facts at issue in Caplan were extreme and will likely set a high standard for the type of conduct required to satisfy the "stringent" test. Nevertheless, if upheld by appellate courts, the tort could be a useful cause of action for employers, institutions, and organizations that are targeted on social media by disgruntled individuals or former employees over prolonged periods of time.
Employers should rest assured, however, that Caplan is not a resurrection of the tort of harassment in the employment context, which was clearly rejected by the Court of Appeal in Merrifield, though it remains to be seen whether and how this tort may be applied to less extreme facts. Notwithstanding that the threshold for this new tort of harassment is high, employers may also wish to take this opportunity to review their own harassment and social media policies, to make sure that the expectations around anti-harassment and online behaviour are entirely clear.
The authors wish to thank Amélye Paquette, articling student, for her help in preparing this legal update.
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