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Extraordinary circumstances call for Extraordinary Remedies

by Jeremy Schwartz and Daniel Gaspar

In Caplan v Atas, 2021 ONSC 670 (“Caplan”), following a series of protracted, abhorrent campaigns of harassment and defamation committed by the defendant, the Ontario Superior Court of Justice (the “Court”) expanded the common law in Ontario by recognizing a new tort: harassment in online communications.

After a lengthy discussion of the extraordinary facts underlying the case and an analysis of the existing tort law framework in Ontario, the Court reasoned that the circumstances warranted an expansion of the law to address and remediate the growing prevalence of online harassment, bullying, defamation, and cyber-stalking. What resulted is the recognition of a new source of liability and the potential for creative remedies to address extreme conduct in the increasingly online and digitized society in which we live.

In this article, we discuss the Caplan decision, the details of the new tort of harassment in online communications as well as some of its implications for employment law and what employers ought to keep in mind for the future.

The facts

The antagonist was the Defendant in four separate actions all involving a similar set of facts. For over a decade, the Defendant engaged in an extraordinary and systemic campaign of harassment, defamation, and cyber-stalking against as many as 150 individuals ranging from her former lawyers to employees of her former employer, all of which the Court found was obsessively orchestrated to inflict emotional and psychological harm to secure “retribution for longstanding grievances” that she alleged she suffered dating back as far as the 1990s. In total, the Defendant posted “thousands” of comments and postings online against her victims consisting of baseless, malicious claims and accusations ranging from professional misconduct to allegations of sexual criminality such as pedophilia or sexual predation.

In numerous prior cases involving the Defendant, multiple judgments had been awarded against her for her conduct, which the Court described as “sociopathic” and underlied by “serious mental illness”. Undeterred by the substantial damages ordered against her and despite injunctions which prohibited her from posting any content online, the Defendant continued in her obsessive campaigns against her victims. As the Court described, it became evident that “[t]he law’s response… failed to respond adequately”.

In the Court’s view, this necessitated an expansion of existing law.


Recognition of the “Tort of Harassment in Internet Communications”

The Court had little trouble concluding that the Defendant’s conduct was defamatory, finding that she authored thousands of postings on the internet against the plaintiffs, their families, and their associates.

However, the Court found that the Defendant’s conduct went beyond “mere” defamation and “character assassination” — her campaign was intended “not so much to defame” the plaintiffs, but to “harass, harry and molest by repeated and serial publications of defamatory material” against not only the plaintiffs, but also those they cared for, all of which only to inflict “fear, anxiety and misery”.

The pre-existing torts of intrusion upon seclusion and even intentional infliction of mental suffering were “inadequate” in light of her conduct and were otherwise not established on the facts. To respond, the Court held that the tort of harassment in internet communications should be recognized in Ontario. In so doing, the Court was careful in justifying its expansion of the common law, distinguishing the facts before it from those in Merrifield v Canada (AG) in which a recognition of a “general” tort of harassment in Ontario was later overturned by the Court of Appeal for Ontario.

Drawing from U.S. tort law, the Court established the following test for the tort of harassment in internet communications:

  1. the 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 made such communications or conduct with the intention of causing the plaintiff fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and
  3. the plaintiff consequently suffered such harm.

Not surprisingly, the Court held that each element had been established. However, in what is largely uncommon in a tort action (but which befits the novelty of the proceedings), damages were not awarded — the plaintiffs had earlier withdrawn all claims for monetary compensation given that at the time of trial, she was bankrupt, homeless, and therefore living “judgment-proof”.

The Court therefore granted the plaintiffs the following remedies appropriate in the extraordinary circumstances of the case:

  • a permanent injunction prohibiting the Defendant from, among other things, disseminating or otherwise posting on the internet any comment, photograph, etc., relating to the plaintiffs, their families or associates and other victims of her defamation and harassment; and
  • an order to remove her impugned online postings, with title in the postings vested to the plaintiffs (with ancillary orders enabling them to take steps to have the content removed) given the unlikelihood that the Defendant herself would comply with such an order.


Implications for employers

As evident from the test for the new tort, the threshold for liability is very high, with the Court itself cautioning that “only the most serious and persistent of harassing conduct” will become tortious. Thankfully, it will not be every day that a set of facts as extreme as those in Caplan will rear their ugly head in Ontario. Therefore, the circumstances in which the tort will be awarded may be few and far between.

Moreover, unlike the $20,000 general damages cap established by the Court of Appeal for Ontario when it recently recognized the novel privacy tort of intrusion upon seclusion, the Court in Caplan was not called upon to award monetary damages. Thus, we have no guidance on the scope of potential awards. One expects that a similar cap on general damages would likely follow, with any compensatory damages awarded separately based upon actual harm.

By and large, we expect the recognition of this new tort will come as good news for employers.


Disgruntled former employees posting online

As something of a deterrent alongside liability for the tort of defamation, the new tort of harassment in internet communications may act as an added bulwark against disgruntled and bitter former employees who decide to take to the internet and social media as a channel for disdain and launch speculative and baseless claims and accusations against a former employer. In such cases, employers may seek both damages at large and compensating for actual harm done, as well as temporary and permanent injunctions. As yet, it is unclear whether a corporation may seek a remedy for the tort or whether only individuals within the corporation may do so.


Disciplining employees for off-duty conduct

The new tort may bolster an employer’s ability to discipline its current employees for off-duty misconduct online. In both the unionized and non-unionized context, the general rule is that conduct committed outside the workplace and outside working hours during an employee’s private time may only form cause for discipline if it is prejudicial to the employer’s business interests, reputation or operations, or if it affects the employee’s ability to perform his or her job duties. In other words, there must be a justifiable connection to the employer or the nature of the employee’s position.

Should an employee commit the tort of harassment in internet communications against managers or co-workers or against third parties, depending on the nature of the employee’s position and whether his or her employment is brought to light, grounds for discipline may exist. With the extent and speed at which information spreads through social media and on-demand news outlets, an employer’s reputation and business interests may be at stake should its name be associated with an employee held to have committed the tort.

In such cases, even if cause for discipline does not exist, employers ought to think twice about the reputational risk of continuing to employ individuals held to have committed the tort and the outrageous, indecent conduct underlying it.


Potential employer liability

Like any other tort committed by an employee, an employer may become vicariously liable for the tort of harassment in online communications. The doctrine of vicarious liability operates to hold one individual or entity legally accountable for the misconduct of another based on the relationship between them, most common of which is the employer–employee relationship. Most often, vicarious liability will arise where an employee has engaged in wrongful conduct that is not expressly authorized by the employer, but which is “sufficiently connected” to the duties and tasks that an employer has expressly authorized.

Within the past 10 years in Ontario, there have been several cases in which employers were held vicariously liable for a manager’s commission of the tort of intentional infliction of mental suffering. In such cases, managers were held to have committed tortious conduct against subordinates. Based on the nature of these managers’ job duties supervising and otherwise interacting with their subordinates, the tortious conduct was held to have been committed within the scope of the managers’ job duties, rendering their employers vicariously liable for the tort.

Particularly in light of the extensive shift to remote work and the use of online communications during the COVID-19 pandemic — as well as the likelihood that remote work is here to stay at least in some capacity — employers should be aware of their potential liability for the new tort and should take steps to train managers and supervisors to maintain a respectful “workplace” when working remotely.  Care should also be taken to encourage responsible use and to monitor the use of company social media accounts and other internet tools and services.

Now is the perfect time to refresh your electronic devices and online behaviour policy.

For more information, please contact:

Jeremy D. Schwartz at [email protected] or 416-862-7011

Daniel C.F. Gaspar at [email protected] or 416-849-2552