In 2019, the Court of Appeal for Ontario declined to recognize a common law tort of harassment in Ontario in Merrifield v Canada (Attorney General)¹ but left the door ajar for possible future recognition in appropriate circumstances. Recently in Caplan v Atas², Justice Corbett of the Ontario Superior Court of Justice pushed that door open and stepped through by concluding that the extreme nature of the online harassment at issue warranted recognition of the tort of online harassment.

Background and previous case law

Caplan arose as the result of a systematic campaign of online conduct—including allegations of pedophilia and professional misconduct—that went on for over a decade and was orchestrated by the defendant, Nadire Atas. Her targets included adverse litigants, her own lawyers and agents, relatives of these people, a former employer, its successor, owners, managers, and employees, and a circle of victims chosen to “cause misery to [the defendants’] prime victims.” 

In 2019, the Court of Appeal for Ontario in Merrifield declined to recognize a tort of harassment on two grounds. First, it held that the tort of intentional infliction of mental suffering was a sufficient remedy in the circumstances. Second, the Court was not provided with any domestic or foreign judicial authority, academic guidance, or compelling policy rationale for recognizing the tort of harassment or its requisite elements. 

Decision on tort of harassment

In Caplan, Justice Corbett held that the tort of internet harassment should be recognized and was made out in this case. The Court held that Atas’ conduct did not seek to defame the victims, but rather aimed to “harass, harry and molest”, which Justice Corbett noted could result in real harm by causing fear, anxiety, and misery. Unlike in Merrifield, the tort of intentional infliction of mental suffering was inadequate in these circumstances because there was no evidence of a “visible and provable illness”, a required element of that tort. 

Drawing on American judicial authority for the existence of the tort of online harassment, Justice Corbett noted that the tort comprised of the following elements: 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.” Justice Corbett held that that facts fit within the tort of online harassment. 

As a remedy for Atas’ conduct, Justice Corbett ordered a permanent injunction restraining her from any and all internet communications with respect to all her victims. He also vested title in all postings to the plaintiffs, with ancillary orders to have the content removed. The plaintiffs were entitled to enforce the injunction even where the harassing conduct was directed against a third party for the purpose of harassing a plaintiff. 

Implications

This case represents a significant advancement in the common law’s response to nefarious online behaviors. As Atas was self-represented and without resources (the court found she filed for bankruptcy in an effort to prevent judgment) it is unclear whether the Court of Appeal will have the opportunity to weigh in on the longevity of this tort. Whether damages are available where the elements of this tort are made out remains to be seen, especially given one of the justifications for recognizing the tort of online harassment was that Atas’ was judgment-proof and therefore a new tort was found to be required to “provide remedial breadth not available in the law of defamation.” If damages are available, it is not clear how a court will measure them for the harms of “fear, anxiety, emotional upset” or impugned dignity. 

Additionally, unless and until the Legislature heeds the court’s statement that there is a need for regulation to curb online harassment (like Nova Scotia and Manitoba), victims will have to turn to the courts, and in particular this new tort, to curtail online harassment. 

If you find yourself in the situation of dealing with online harassment, consider reaching out to the Dentons’ Technology New Media and IP Litigation group. 

1. 2019 ONCA 205 [Merrifield].
2. 2021 ONSC 670 [Caplan].

The author wants to thank Henry Machum, articling student, for his contribution to this article.