Regardless of social media policies establishing expectations for employee conduct online, online harassment is still a prevalent issue in the workplace as well as in society more generally.  In a lengthy decision, Caplan v. Atas, 2021 ONSC 670 (Caplan v. Atas), the Ontario Court of Justice recognized a new common law tort of internet harassment, which may provide recourse and remedies for employers (and others) who are harassed, bullied and/or stalked on the internet. 

Background

The decision arose in response to three motions for summary judgment and a motion for default judgment brought by the plaintiffs in four actions, all of them relating to the individual defendant’s internet harassment.  Justice Corbett aptly described the facts of the case:

These cases concern extraordinary campaigns of malicious harassment and defamation carried out unchecked, for many years, as unlawful acts of reprisal.  [The defendant], has used the internet to disseminate vicious falsehoods against those towards whom she bears grudges, and towards family members and associates of those against whom she bears grudges.  [The defendant] is destitute and apparently content to revel in ancient grievances, delighting in legal process and unending conflict because of the misery and expense it causes for her opponents. 

Cyber-stalking is the perfect pastime for [the defendant].  She can shield her identity.  She can disseminate vile messages globally, across multiple unpoliced platforms, forcing her victims to litigate in multiple jurisdictions to amass evidence to implicate her, driving their costs up and delaying the process of justice.  Unrestrained by basic tenets of decency, when she is enjoined from attacking named plaintiffs, she moves her focus to their siblings, their children, their other family members and associates, in a widening web of vexatious and harassing behaviour.

In the course of her campaign, the defendant harassed approximately 150 individuals on the internet, including a former employer, its successor, owners, managers, and employees.  Her claims that her targets were sexual predators, pedophiles, or guilty of professional misconduct, were untrue.  In response to the defendant’s actions, the plaintiffs (persons connected with mortgage enforcement proceedings brought against the defendant, and a former employer) sued for defamation and harassment; they argued that a finding of defamation alone was insufficient given the defendant’s malicious conduct, and submitted to the court that she also committed the tort of internet harassment, which exists in the United States.

Decision

The court concluded that there was no doubt that the defendant had defamed the plaintiffs; however, it decided that the remedies available for a defamation claim were insufficient to bring an end to her harassment.  The court concluded that the common law tort of internet harassment should be recognized to address the defendant’s online conduct and publications, which went beyond defamation, and which the court described as seeking:     

…not so much to defame the victims but to harass them.  Put another way, the intent is to go beyond character assassination: it is intended 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.  The social science literature…makes it clear that real harm is caused by serial stalkers such as [the defendant]. (para. 168)

The court held that the facts of the case met the following stringent test for the tort of harassment in internet communications, which it drew from American case law:

…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. (para. 171)

The court granted the following remedies:

• A permanent injunction prohibiting the defendant from harassing the plaintiffs and all “other victims of her defamation and harassment, together with their families and related persons, and business associates” (i.e., non-parties to the litigation);

• An order vesting title in the postings in the plaintiffs, with ancillary orders enabling the plaintiffs to take steps to have the content removed from the internet; and

• An ancillary finding of fact that the defendant’s publications were false, which the plaintiffs requested because such a finding was required for removal of the posts in some jurisdictions in the United States.

Since the defendant was “destitute, lives in shelters, owns no property other than the clothes on her back and a cellphone, and is an undischarged bankrupt” (para. 93), the plaintiffs withdrew their monetary claims, even as to costs.

The court in Caplan v. Atas acknowledged that, as discussed here, the Ontario Court of Appeal (OCA) overturned the trial court’s decision in Merrifield v. The Attorney General, 2017 ONSC 1333 (Merrifield) to recognize a common law tort of harassment.  The court noted, however, that the OCA did not foreclose the possibility that a tort of harassment might be developed in the future.  The court also distinguished the facts in Caplan v. Atas from those in Merrifield stating that they were much closer to the situation in which the OCA recognized the tort of intrusion on seclusion in Jones v. Tsige, 2012 ONCA 32. The court was inspired to create the tort of internet harassment because of the inadequacies in the law to address the defendant’s conduct.  Finding that the United States recognized such a tort, and even though the Law Reform Commission of Ontario (LCO) had conducted an extensive review of the law pertaining to offensive internet content, Ontario lacked appropriate legislation addressing conduct like that of the defendant, which legislation exists in England, Manitoba, and Nova Scotia.  Still, the court acknowledged, just like the LCO, that “It would be better if changes in this area of the law came from the legislature rather than a trial judge.” (para. 173)

Bottom Line for Employers

The new common law tort of internet harassment may allow persons (including employers) who are victimized online by employees, former employees, or others, to obtain practical remedies such as the ones described above, as well as remedies that were inappropriate in the circumstances of this case due to the defendant’s poverty, serious mental illness, lack of credibility, and history of non-compliance with court orders.  While the creation of the common law tort of internet harassment is a welcome development given how often the internet is used by individuals to maliciously and recklessly harass and cyber stalk others, the creation of legislation to address such behaviour would be a welcome next step, as the court emphasized in this case. 

Given the defendant’s history, it would not be surprising if she attempted to appeal this decision; however, since she has been declared a vexatious litigant, she will be unable to appeal unless the Superior Court grants her leave. If leave is granted, we will report on the OCA’s reaction to the decision of the Superior Court.