A judge of the Ontario Superior Court of Justice has recognized a new common law tort of harassment. As recently as 2019, the Ontario Court of Appeal declined to recognize the existence of a tort of harassment in Canadian law.
In his recently released decision in Caplan v. Atas, 2021 ONSC 670,Justice Corbett held that the extreme circumstances of the case before him nevertheless warranted the recognition of this new tort, as the most appropriate redress for the behaviour at issue.
Facts of the Case
This case concerned a campaign of malicious harassment and defamation by the defendant Atas against a number of individuals that occurred over the course of decades.
Through behaviour described by the judge as “sociopathic” and motivated by “serious mental illness”, the defendant made numerous communications and online publications attacking and defaming individuals involved in a dispute the defendant had with a former employer, as well as individuals involved in two mortgage disputes involving the defendant.
The plaintiffs are the victims of the defendant’s harassment, and had commenced several related actions against the defendant for monetary damages, as well as declaratory and injunctive relief.
Over the years, the plaintiffs in these related proceedings have obtained interlocutory injunctions requiring the defendant to cease making internet posts about them. The defendant would then begin attacking friends, relatives, and other associates of these plaintiffs, in order to indirectly attack her primary targets. The plaintiff has been jailed due to violations of various interlocutory orders and contempt of court, but still her behaviour continued.
The harassing internet posts were largely posted anonymously and were quite extreme. For example, one of the defendant’s victims was the brother of one of her primary targets, who was a doctor living in New Mexico. The defendant created elaborate internet posts suggesting that this doctor was a pedophile and child pornographer.
This harassment continued for some time before the victim discovered the connection between the author of these posts and his brother, which enabled him to identify the defendant as the perpetrator.
The plaintiffs in the related actions were able to amass substantial evidence demonstrating that the defendant published or caused to be published the harassing internet posts, and brought summary judgment motions against the defendant. Rather than responding to the motions, the defendant assigned in bankruptcy thinking that the automatic stay of proceedings that accompanies bankruptcy would halt the motions.
In response, the plaintiffs withdrew their claims for monetary damages and costs (the defendant was impecunious in any event). Justice Corbett held that the motions for judgment could proceed without the need for an order to continue, given that the stay arising from the defendant’s assignment in bankruptcy was intended to protect the defendant’s creditors’ interests, which would not be affected by the injunctive or declaratory relief sought, and the defendant’s trustee in bankruptcy did not object to the proceedings continuing on this basis.
The Defamation Ruling
Justice Corbett found that the plaintiffs had established that the defendant had published or caused to be published the impugned internet posts, all of which were false. His Honour then turned to consideration of the appropriate remedy for the defendant’s conduct.
The plaintiffs had framed their actions in defamatory libel, common law harassment, and private nuisance. Justice Corbett first considered the defendant’s actions as acts of defamation. He concluded that many of the thousands of postings published by the defendant are defamatory to the plaintiffs.
However, His Honour noted that some of the posts do not communicate facts, but are just purely abusive comments meant to convey only the poster’s dislike for the subject. His Honour concluded that such posts cannot be defamatory, since they cannot be said to be either true or false, but they can be considered as part of a pattern of harassment.
In any event, Justice Corbett accepted that the defendant published or caused to be published the defamatory posts, and that the defendant had failed to establish any defence for the defamatory publications. Accordingly, he held that the tort of defamation had been established in this case.
The Harassment Ruling
Justice Corbett next considered whether this was an appropriate case in which to recognize a new common law tort of harassment. He determined that it was.
In reaching this conclusion, Justice Corbett distinguished the relatively recent decision of the Ontario Court of Appeal in Merrifield v. Canada (Attorney General), 2019 ONCA 205, in which the Court of Appeal had declined to recognize a tort of harassment.
In Merrifield, which involved allegations of harassment by RCMP officers, the trial judge had recognized the availability of the tort of harassment at common law, and had granted judgment to the plaintiff on that basis. The Court of Appeal held that the trial judge had erred in recognizing a common law tort of harassment in the circumstances of that case.
The Court of Appeal’s reasons for rejecting a tort of harassment in Merrifield were two-fold. First, the Court noted that changes to the common law such as the recognition of a new tort should be slow and gradual, and should arise from prior developments in the jurisprudence.
The Court of Appeal reviewed the Canadian jurisprudence and concluded that there is no real authority supporting the existence of a tort of harassment in Ontario. The Court further noted that it had not been provided with any foreign or academic authority, or compelling policy rationale, that would support the recognition of a new tort of harassment either.
Second, the Court of Appeal stated that there were other legal remedies available to address the same conduct that the plaintiff argued constituted harassment in that case. Specifically, the Court held that the tort of intentional infliction of mental suffering was applicable and appropriate to address the conduct complained of by the plaintiff.
The Court further noted that the elements of the tort of harassment proposed by the trial judge were very similar to the elements of intentional infliction of mental suffering, but that they were easier to make out.
The Court of Appeal accordingly concluded that the plaintiff had not presented a compelling reason to recognize a new tort of harassment in that case. However, the Court did not foreclose the development of a tort of harassment in the appropriate context.
In Caplan, Justice Corbett attempted to distinguish the Court of Appeal’s decision in Merrifield in a number of ways. First, he considered authorities from other jurisdictions, including the US, England, Manitoba, and Nova Scotia, relating to the availability of the tort of harassment. He also considered academic studies on the prevalence and effect of cyber bullying and online harassment.
His Honour also distinguished Merrifield on the facts of the case. In this case, he noted, there was no evidence before him to suggest that the plaintiffs had suffered a visible and provable illness as a result of the defendant’s conduct, which is a required element of the tort of intentional infliction of mental suffering that the Court of Appeal in Merrifield had held to be a suitable cause of action for that case. His Honour stated, however, that the law would be deficient if it did not provide a remedy until the consequences of the defendant’s wrongful conduct caused a visible and provable illness.
Finally, Justice Corbett adopted a stringent test for harassment drawn from American caselaw: “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.”
His Honour noted that only the most serious and persistent harassing conduct rises to the level where the law should respond to it, but felt the case before him fit that description.
Justice Corbett provided the plaintiffs with a variety of relief, including a permanent injunction barring the defendant from publishing or posting online anything relating to the plaintiffs and other victims of the defendant’s harassment, as well as their families, relatives, and business associates. His Honour stated that he would have seriously considered permanently banning the defendant from posting anything at all online, had he been asked to do so.
His Honour also ordered that the defendant’s ownership of the impugned postings and the internet accounts associated with them be permanently transferred to the plaintiffs, so that they can remove them.
Impact of Decision
Following the decision in Caplan v. Atas, the tort of harassment may be available as a cause of action in Ontario. However, it remains to be seen whether the Court of Appeal will accept Justice Corbett’s reasons for recognizing this new tort, whether on appeal from this case or in future decisions.
One issue the Court of Appeal might take with Justice Corbett’s decision is that while he explained why the tort of intentional infliction of mental suffering was not applicable to the case before him, as it had been in Merrifield, it is not immediately evident in his decision why the tort of defamation was not sufficient to provide redress for the defendant’s conduct.
Justice Corbett’s justification for recognizing a tort of harassment, rather than just relying on defamation, was that the defendant’s conduct was not aimed at defaming the plaintiffs so much as at harassing them, and the defamatory publications were just the means to that end. However, His Honour did find that the tort of defamation had been made out in this case, and much of the authority he relied on in providing remedies to the plaintiffs was authority from the defamation context.
Given the Court of Appeal’s comments in Merrifield to the effect that the courts should be slow to recognize new torts, particularly where existing torts provide adequate redress, one wonders whether they will agree that recognition of a new tort was necessary in this case.
To extend the reasoning in Merrifield, the Court of Appeal might find that while intentional infliction of mental suffering already covers off many of the same situations as a tort of harassment would, the tort of defamation is available to cover those situations in which the harassment involves defamatory publications, but has not caused any illness.
Such reasoning might, of course, leave prospective plaintiffs who are being harassed, but not through the use of defamatory statements or publications, and not to an extent that it has caused them a visible and provable illness, without a cause of action or remedy. However, it is not immediately obvious that such a situation should necessarily entitle one to a civil remedy.
Tort law is usually concerned with remedies to address legally compensable damages sustained by a plaintiff as a result of a defendant’s conduct. In cases of infliction of injury, whether physical or psychological, it is the injury that is compensable. In cases of defamation, it is the reputational damage that is compensable.
However, in a case where a defendant is merely bothering the plaintiff, but has caused neither injury nor reputational damage, it is not clear what damages the law should seek to redress. This is an apparent problem with the tort of harassment as formulated by Justice Corbett.
In this case, Justice Corbett seems to have identified the damages to be compensated in the test he adopted for the tort of harassment: “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.” (emphasis added).
However, if the damages flow from fear, anxiety, or emotional upset caused by the defendant’s intentional conduct, and rises to a compensable level (as outlined by the Supreme Court of Canada in Mustapha v. Culligan of Canada Ltd., 2008 SCC 27), then the tort of intentional infliction of intentional injuries will have been made out. If the damages flow from the plaintiff’s impugned dignity, then presumably defamation will have been made out. It is accordingly somewhat unclear what is added by this new tort.
In any event, it will be very interesting to see how the Court of Appeal next tackles this developing tort.