Ontario Superior Court recognizes new tort of harassment

May 4, 2021 | Gillian Tuck Kutarna

A recent decision by the Ontario Superior Court (Caplan v. Atas, 2021 ONSC 670) has created a new civil cause of action for harassment.

The ruling arose from a set of extraordinary facts, wherein four lawsuits filed against the defendant were joined, and together established a pattern of behavior spanning 20 years, targeting up to 150 victims, taking place on multiple platforms, and intended as reprisals for the victims’ perceived wrongdoings against the defendant.

The defendant’s relentless campaign included defamatory postings on social media sites alleging that her victims and their families and friends engaged in fraudulent activity, were sexual predators or pedophiles, and other such insults.

The Court reviewed the existing law and found existing causes of action to be inadequate to respond to the behavior established by the evidence.  Specifically, the Court found that:

  • the defendant’s conduct went beyond defamation, with its focus on reputational harm;
  • intentional infliction of mental suffering requires a plaintiff to produce evidence of resulting illness, which defeats the goal of deterring against harassment before it results in a provable illness of the target; and
  • harassment differs from intrusion upon seclusion, as the plaintiff suffers from more than  just an invasion of their private affairs.

The Court therefore held that the conduct before it warranted legal recognition of a new tort of harassment.  Noting that the threshold would be high, the Court stated that harassment should be limited to circumstances where a plaintiff can establish that:

  1. a 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 had an intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and
  3. the plaintiff suffered the harm intended by the defendant.

With this ruling, Ontario follows other jurisdictions such as Nova Scotia, New Zealand, the U.S. and the U.K. in providing a legal means of responding to incidents of extreme harassment causing harm.   Although we would hope that school boards will not be faced with circumstances that meet the threshold established in this case, it is valuable to note that a civil remedy now exists.

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