ARTICLE
11 May 2021

Ontario Superior Court Recognizes New Tort Of Harassment

MT
Miller Thomson LLP

Contributor

Miller Thomson LLP (“Miller Thomson”) is a national business law firm with approximately 500 lawyers across 5 provinces in Canada. The firm offers a full range of services in litigation and disputes, and provides business law expertise in mergers and acquisitions, corporate finance and securities, financial services, tax, restructuring and insolvency, trade, real estate, labour and employment as well as a host of other specialty areas. Clients rely on Miller Thomson lawyers to provide practical advice and exceptional value. Miller Thomson offices are located in Vancouver, Calgary, Edmonton, Regina, Saskatoon, London, Waterloo Region, Toronto, Vaughan and Montréal. For more information, visit millerthomson.com. Follow us on X and LinkedIn to read our insights on the latest legal and business developments.
A recent decision by the Ontario Superior Court (Caplan v. Atas, 2021 ONSC 670) has created a new civil cause of action for harassment.
Canada Litigation, Mediation & Arbitration

A recent decision by the Ontario Superior Court (Caplan v. Atas, 2021 ONSC 670) has created a new civil cause of action for harassment.

The ruling arose from a set of extraordinary facts, wherein four lawsuits filed against the defendant were joined, and together established a pattern of behavior spanning 20 years, targeting up to 150 victims, taking place on multiple platforms, and intended as reprisals for the victims' perceived wrongdoings against the defendant.

The defendant's relentless campaign included defamatory postings on social media sites alleging that her victims and their families and friends engaged in fraudulent activity, were sexual predators or pedophiles, and other such insults.

The Court reviewed the existing law and found existing causes of action to be inadequate to respond to the behavior established by the evidence. Specifically, the Court found that:

  • the defendant's conduct went beyond defamation, with its focus on reputational harm;
  • intentional infliction of mental suffering requires a plaintiff to produce evidence of resulting illness, which defeats the goal of deterring against harassment before it results in a provable illness of the target; and
  • harassment differs from intrusion upon seclusion, as the plaintiff suffers from more than just an invasion of their private affairs.

The Court therefore held that the conduct before it warranted legal recognition of a new tort of harassment. Noting that the threshold would be high, the Court stated that harassment should be limited to circumstances where a plaintiff can establish that:

  1. a defendant 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;
  2. the defendant had an intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and
  3. the plaintiff suffered the harm intended by the defendant.

With this ruling, Ontario follows other jurisdictions such as Nova Scotia, New Zealand, the U.S. and the U.K. in providing a legal means of responding to incidents of extreme harassment causing harm. Although we would hope that school boards will not be faced with circumstances that meet the threshold established in this case, it is valuable to note that a civil remedy now exists.

Note to Morning Recess Subscribers

The Education Law Group at Miller Thomson LLP suspended our webinar series Morning Recess during the pandemic. We are starting it again this September 2021. We hope you join us. If there are topics that you would like to see covered, please email us at educationlaw@millerthomson.com. We would love to receive your suggestions and feedback.

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.

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More