In a recent decision from the Ontario Superior Court of Justice (Caplan v. Atas, 2021 ONSC 670), the Court considered the pervasive culture of “malicious harassment and defamation carried out unchecked, for many years, as unlawful acts of reprisal” by a vexatious litigant.
Four consolidated actions were at issue, all being brought against Nadine Atas, a woman who used the internet to disseminate vicious falsehoods, including fraud, professional misconduct, and pedophilia, against persons and related persons against whom she held grudges. Atas was not an individual well-received by the Court, with Justice Corbett referring to her as conducting a “web of vexatious and harassing behaviour”, and as someone who “is so unbalanced as to impugn her grasp on reality.”
The Court particularized the failure of the law to adequately address such repugnant behaviour. It iterated the struggle to balance the interplay of freedom of speech and the law of defamation: the importance of preserving open public discourse, free and democratic speech, with the protection for personal reputations. The internet had cast this balance into disarray and the Court called for a solution.
Interim injunctions having already been issued in three of the four actions – all relating to the restraint of Atas from making, publishing or causing to be published statements relating to the plaintiffs. In one action, the injunction was so broad as to prohibit her from posting anything online at all, on the basis that a more narrow injunction would leave it open to Atas to broaden the targets of her campaign without violating the order.
Atas had engaged in a “systemic campaign of internet defamation and harassment”. Atas published records on the internet which were defamatory, made with the intent to harass the people against whom they are targeted, and which were part of long-term campaigns to not only defame the people against whom they were targeted, but to harass them.
Justice Corbett found the law as it stood was inadequate to respond to Atas’ conduct. The remedies available in defamation law were insufficient, and the Court noted that harassment, as a concept, was already recognized in other areas of law such as criminal law and family law. Harassment is wrongful conduct and is a social ill. In light of this, the Court recognized the tort of internet harassment. In doing so, the Court seemingly adopted the test as taken from American case law:
(1) 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;
(2) the defendant conducts him or herself so with the intent to cause fear, anxiety, emotional upset or to impugn the dignity of the plaintiff; and
(2) and the plaintiff suffers such harm.
The Court concluded that it is “only the most serious and persistent of harassing conduct that rises to a level where the law should respond to it.” Whether this tort withstands the judicial scrutiny from the Ontario Court of Appeal, after having refused to acknowledge a tort of harassment in 2019, remains to be seen. As well, the adoption of this tort into BC law is also speculative, as courts in British Columbia have been reluctant in recent years to expand upon such internet-adjacent torts such as Breach of Privacy and Intrusion Upon Seclusion.