The Ontario Superior Court of Justice has released a significant new decision, Caplan v. Atas, 2021 ONSC 670 ("Caplan"), setting out a new tort of "harassment in internet communications."
While Caplan is not strictly an employment law case, the conduct at issue – internet harassment - has the potential to present itself in a broad range of situations, including in the employment context. In the circumstances, we are providing an overview of the case, along with some key takeaways for employers. Further details on the decision can be found in our Litigation Update.
The Caplan decision, penned by Justice Corbett, is an extensive one, involving a complex procedural history. Briefly, the case involved a defendant who used the internet and social media to disseminate "vicious falsehoods" and "vile messages" (including, for example, unfounded accusations of professional misconduct, pedophilia, and sexual predation) in a decades-long campaign of malicious harassment and defamation against various individuals. The targets of the defendant's harassment included people against whom she bore grudges stemming from long resolved litigation (one, a former employer), and a wide web of their associates and family members. At the time of the hearing, 150 people had been victimized by the defendant.
In order to enjoin the defendant's conduct and to obtain evidence, plaintiffs in multiple actions were forced to bring litigation across several jurisdictions to their considerable time and expense. This particular decision stemmed from the hearing of three motions for summary judgment and one motion for default judgment in four actions that were heard and decided together. The plaintiffs were suing the defendant for defamation, harassment, and related claims. Below we focus on the harassment claims and related findings.
The New Tort of Internet Harassment
The plaintiffs in Caplan argued that a finding of defamation, on its own, was not sufficient given the defendant's conduct and proposed that a finding of the commission of the tort of internet harassment, drawn from American case law, was appropriate in the circumstances.
Justice Corbett found in the plaintiffs favour, noting that the defendant's online publications sought "not so much to defame the victims but to harass them" and that their intent was "to go beyond character assassination [and to] harass, harry and molest by repeated and serial publications of defamatory material, not only of primary victims, but to cause those victims further distress by targeting persons they care about, so as to cause fear, anxiety and misery."
With the above in mind, Justice Corbett found the tort of internet harassment to be made out where a defendant (i) maliciously or recklessly engaged in communications or conduct so outrageous in character, duration, and extreme in degree, so as to go beyond all possible bounds of decency and tolerance, and (ii) had the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff, and the plaintiff suffered such harm. The defendant's conduct was held to clearly meet this stringent test.
As the plaintiffs withdrew their monetary claims due to the defendant's bankruptcy, Justice Corbett issued a permanent injunction barring the defendant from posting on the internet with respect to the plaintiffs and other victims of her harassment. Title in the defendant's postings was also vested to the plaintiffs, with ancillary orders allowing them to take steps to have the content removed from the internet.
In delineating the new tort, Justice Corbett distinguished his decision from the findings in Merrifield v. Canada, where the Ontario Court of Appeal declined to recognize a tort of harassment and cautioned against quick and dramatic developments in the common law. Echoing Merrifield (discussed here), Justice Corbett noted that it would be better if changes in the law came from the legislature as opposed to the courts, as the former are better positioned to respond to "new legal problems." Nonetheless, Justice Corbett found that the facts in this case were distinguishable from those in Merrifield and closer to the situation Jones v. Tsige (see our blog), where the Court of Appeal recognized the tort of intrusion upon seclusion and found that the facts in the case cried out for a new remedy.
As a result of the Caplan decision, employers and employees now have available a new cause of action through which to seek redress where work-related harassment occurs online or over social media. We may see such claims added or sought in the alternative to claims for damages for intentional infliction of mental suffering, aggravated or punitive damages, or human rights damages. Employers may be able to use the new tort against employees, or former employees, who lash out or air grievances online or over social media. Where any such claims are made, litigants will have to be mindful of the high standard set out in Caplan, requiring a plaintiff to demonstrate that the communications or conduct at issue were outrageous, extreme and beyond the bounds of decency, among other elements of the test.
We will continue to monitor this case, including whether it proceeds to appellate review (this may not occur given that plaintiff is bankrupt and has been declared a vexatious litigant and will need leave of the Superior Court to appeal). As the facts in Caplan were extreme, we will also be monitoring the jurisprudence to see how the test for the new tort is applied in less exceptional circumstances, and to what level of success in the employment context.
In the meantime, employers should continue to be mindful of the importance of preventing and addressing harassment allegations, not only within the workplace, but also in the context of online and social media communications.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.