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On January 28, 2021, the Ontario Superior Court addressed “inadequacies in current legal responses to internet defamation and harassment” by creating a new tort of internet harassment. 

A tort is a civil wrong that causes harm or loss. Recognizing that internet harassment can give rise to a lawsuit for damages is a significant development in the Canadian legal system. 

Background and Legal Claim 

In Caplan v. Atas, 2021 ONSC 670 (CanLII), the Ontario Superior Court concluded four separate actions against the defendant, Nadire Atas, brought by targets of her campaigns of online harassment and defamation.
 
For years, Nadire Atas, used the internet to spread vicious falsehoods about family members, former employers, lawyers and associates of those against whom she bore grudges. Her hatred towards the plaintiffs resulted from her termination from a real estate brokerage in the 1990s, two mortgage enforcement proceedings that did not go her way and a successful application brought against her to declare her a vexatious litigant. Nadire posted false accusations of criminal behaviour, professional misconduct, sexual criminality and pedophilia. As evidence, the plaintiffs brought 3,747 online posts on 77 websites directed against 150 victims to the courts attention.
 
The claims against Nadire Atas included defamatory libel, common law ‘harassment’ and ‘private nuisance’.
 
New Tort of Online Harassment 
 
Having reviewed applicable statutory protections, and common law from both Canada and the United States, Justice Corbett concluded that the tort of harassment in internet communications should be created in Ontario. To meet the test for the tort of harassment in internet communications, the plaintiff must show:
 
1. The defendant maliciously or recklessly engaged in communications so outrageous in character, duration and extreme in degree so as to go beyond all possible bounds of decency and tolerance;
 
2. The defendant acted with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and
 

3. The plaintiff suffers such harm.
 
Conclusion
 
One of the biggest questions for us in British Columbia is how our courts will interpret the decision of the Ontario Superior Court. Cyberbullying and internet harassment requires the court to address jurisdictional issues that were not brought to light in this particular case. An internet user may post harassing comments about someone in British Columbia, while being located in another province or another country.  Extra-jurisdictional issues may make it difficult for plaintiffs to enforce the court’s judgment.
 

Justice Corbett stressed the need for regulatory oversight to address the rise of cyberbullying:
 
“… it is clear that the law needs better tools, greater inter-jurisdictional cooperation, and greater regulation of the electronic “marketplace” of “ideas” in a world with near universal access to the means of mass communication. Regulation of speech carries with it the risk of over-regulation, even tyranny. Absence of regulation carries with it the risk of anarchy and the disintegration of order. As should be clear … a situation that allows someone like Atas to carry on as she has, effectively unchecked for years, shows a lack of effective regulation that imperils order and the marketplace of ideas because of the anarchy that can arise from ineffective regulation (para 6).”
 
If you have been the victim of cyberbullying, defamation or internet harassment, we at Hammerco Lawyers may be able to assist you in pursuing legal action. Please contact us at info@hammerco.ca or by phone at 604.269.8500 for a free consultation.

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